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HomeMy WebLinkAboutOCTOBER 13, 2009 CITY OF VIRGINIA BEACH "COMMUNITY FOR A LIFETIME" CITY COUNCIL MAYOR WILLIAM D. SESSOMS ,JR., At-Large VICE MAYOR LOUIS R. JONES, Bayslde - District" (i/.ENN R. DA VIS, Rose Hal/- Dls/rlct 3 fV/UIAM R. DeSThPH, At-I,arge HANRY Ii DIEZHI" Kempsl'l//e - D/strlct 2 NOB/iRT M DYliR.. Centervil/e - DIstrict / BARBARA M HiiNiEY, Princess Anne DrSlrlcl 7 JOHN H. UHRiN, Beach Dls/rlcl6 /?I!N A. V/UANUHVA, AI-Large ROShMARY WiLSON, AI-Large JAMES L. WOOD, /,ynnhaven -Dls/rlct 5 CITY COUNCIL APPOINTEES CITY MANAGER - JAMES K SPORE CITY A7TORNEY MARK D. STILES CITY ASSESSOR JERALD BANAGAN CITY AUDITOR I.YNDON S. REMIAS ('ITY CLERK - RUTH HODGES FRASER, MMC CITY COUNCIL AGENDA 13 OCTOBER 2009 I. CITY MANAGER'S BRIEFINGS: - Conference Room - A. FAA RADAR UPDATE Steve Herbert, Deputy City Manager B. PIER SETBACKS Karen Lasley, Zoning Administrator C. CHINESE DRYWALL Cheri Hainer, Permits and Inspections Administrator - Planning II. CITY COUNCIL LIAISON REPORTS III. CITY COUNCIL COMMENTS IV. CITY COUNCIL AGENDA REVIEW V. INFORMAL SESSION - Conference Room - A. CALL TO ORDER - Mayor William D. Sessoms, Jr. B. ROLL CALL OF CITY COUNCIL C. RECESS TO CLOSED SESSION CITY HALL BUILDING 2401 COURTHOUSE DRIVE VIRGINIA BEACH, VIRGINIA 23456-8005 PHONE:(757) 385-4303 FAX (757) 385-5669 E-MAIL: Ctycncl@vbgov.com 2:00 PM 3:30 PM VI. FORMAL SESSION AGENDA - Council Chamber - 6:00 PM A. CALL TO ORDER - Mayor William D. Sessoms, Jr. B. INVOCATION: Reverend Karl Sexton Pastor Gateway Free Will Baptist Church C. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA D. ELECTRONIC ROLL CALL OF CITY COUNCIL E. CERTIFICATION OF CLOSED SESSION F. MINUTES 1. INFORMAL and FORMAL SESSIONS September 22, 2009 G. FORMAL SESSION AGENDA H. CONSENT AGENDA I. ORDINANCESIRESOLUTIONS 1. Ordinance to AUTHORIZE the City Manager to execute a Deed conveying the Lynnhaven Middle School site to the School Board. 2. Ordinance to AUTHORIZE the City Manager to ACCEPT the dedication of a parcel of land near Kings Grant Elementary at 586 North Lynnhaven Road. DISTRICT 5 - L YNNHA VEN 3. Ordinance re the ASSIGNMENT of the Sublease for the First Tee at the Virginia Beach National Golf Course from Hampton Roads Junior Golf Foundation to the YMCA of South Hampton Roads. 4. Resolution re an AGREEMENT between the City and the Hampton Roads Center for Civic Engagement (HRCCE) to provide a Transportation Dialogue program to complete the public input process. 5. Resolution to REFER to the Planning Commission an Ordinance to AMEND S III of the City Zoning Ordinance (CZO) re the definition of adult bookstores. 6. Ordinance to AUTHORIZE a temporary encroachment into a portion of City-owned right-of-way for SAMUEL W. ZIMMER to remove an existing block paver wall and a portion of an existing brick walk to construct and maintain a cobblestone curb and modify an existing cobblestone planter at 53-Yz Street and 5303 Ocean Front Avenue. DISTRICT 5 - L YNNHA VEN (Deferred September 22, 2009) 7. Ordinance to ESTABLISH the FEMA Administrative Cost Grant, a subgroup of the Emergency FEMA Fund, TRANSFER $99,852 and $184,157 from the Federal Emergency Management Agency (FEMA) deployment grants re the Virginia Task Force 2 Urban Search and Rescue Team. 8. Ordinance to APPROPRIATE $93,430 to the Police Department's FY2009-10 Operating Budget from the fund balance of the DEA Seized Property Special Revenue Fund re purchase of equipment. 9. Ordinance to ACCEPT and APPROPRIATE from the Department of Criminal Justice Services (DCJS) $20,847 additional funding to the Commonwealth Attorney's Office FY 2009-10 Operating Budget re the Victim Witness Program. 10. Ordinance to APPROPRIATE $9,940 from the fund balance of the Proffer Impact Fund to refund overpayment of open space proffer fees to The Victoria Park Residential Development. J. PLANNING 1. Application of SANDLER AT BRENNEMAN FARM, L.L.C. for an Amendment to PD-H2 Land Use Plan at Brenneman Farm (Nichols Park at Lexington) to convert 76 three (3)-story carriage-style homes to 76 two (2)-story townhomes at Nichols Ridge Road, Willow Croft Drive and Totteridge Lane. DISTRICT 2 - KEMPSVILLE RECOMMENDATION APPROV AL 2. Application of HEBRON CORNERSTONE CHURCH INTERNATIONAL/CS COMMERCIAL PROPERTIES, LLC, for a Conditional Use Permit re a church renovation at 5565 Virginia Beach Boulevard. DISTRICT 2 - KEMPSVILLE 3 RECOMMENDA nON APPROV AL 3. Application of ATLANTIC MARINE CONSTRUCTION, INC. for a Conditional Use Permit re a bulk storage yard at 3465 Chandler Creek Road. DISTRICT 3 - ROSE HALL DEFERRED RECOMMENDA nON SEPTEMBER 10, 2008 and JULY 8, 2009 APPROV AL 4. Application of BOB and DEBRA BURTON for a Conditional Use Permit re a residential kennel at 1425 Drum Point Road. DISTRICT 7 - PRINCESS ANNE RECOMMENDATION APPROV AL 5. Application of HAMPTON ROADS YOUTH and COMMUNITY ADVISORY COUNCILIPINEY GROVE BAPTIST CHURCH for Modification of Conditions (approved by City Council on April 11, 1988) to add portable classrooms at 2804 Holland Road. DISTRICT 7 - PRINCESS ANNE APPROV AL RECOMMENDA nON K. APPOINTMENTS: BOARD OF ZONING APPEALS CHESAPEAKE BAY PRESERVATION AREA BOARD HEALTH SERVICES ADVISORY BOARD L. UNFINISHED BUSINESS M. NEW BUSINESS N. ADJOURNMENT ********************************* PUBLIC COMMENT Non-Agenda Items Each Speaker will be allowed 3 minutes and each subject is limited to 3 Speakers ********************************** I ~ Thursday, November 12th ANNUAL JOINT MEETING General Assembly, City Council and School Board ******** If you are physically disabled or visually impaired and need assistance at this meeting, please call the CITY CLERK'S OFFICE at 385-4303 *********** Gloria IO/13/09gw www.vbgov.com I' - 1 - MINUTES VIRGINIA BEACH CITY COUNCIL Virginia Beach, Virginia October 13, 2009 Mayor William D. Sessoms, Jr., called to order the CITY MANAGER'S BRIEFING re FAA RADAR UPDATE in the City Council Conference Room, Tuesday, October 13,2009, at 2:00 P,M Council Members Present: Glenn R, Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr" John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James 1. Wood Council Members Absent: None October 13, 2009 , !I - 2 - C IT Y MANA G E R 'S B R IE FIN G FAA RADAR UPDATE ITEM # 59255 2:00 P.M. The City Manager advised the FAA Radar update was scheduled at the request of City Council. The City Manager introduced Steve Herbert, Deputy City Manager, who made the presentation. The ARSR-4 Site Location maps depict forty-two (42) sites in the United States. The ARSR-4 Complex at NAS Oceana was installed in 1995. Mr. Herbert displayed slides indicating the location of ARSR-4 in relation to Ocean ant Resort Area. October 13, 2009 I II I - 3 - CITY MANA GER 'S BRIEFING FAA RADAR UPDATE ITEM # 59255 (Continued) Mr. Herbert displayed the Development Corridors of the Resort Area Plan, adopted December 2008 The term "OE" means Obstruction Evaluation and is conducted by the (FAA) Federal Aviation Administration responding to a filing either by the City or an individual who wishes to build in an area withjurisdiction by the FAA, October 13, 2009 ! !I - 4 - C IT Y MANA G E R 'S B R I E FIN G FAA RADAR UPDATE ITEM # 59255 (Continued) Project 11, the original Convention Center Hotel site, was filed with the FAA for a height of207 feet. February 2008 was the first time the City received any indication from the FAA that the height was not approved. 110 Feet was determined by the FAA on February 11,2008. Projects 11 A & B was filed for 180 feet (this height had been agreed upon by the United States Navy), but the FAA determined the height to be only 110 feet, October 13, 2009 , 'I I - 5 - C IT Y MANA G E R 'S B R IE FIN G FAA RADAR UPDATE ITEM # 59255 (Continued) Project 13 (Laskin Gateway/31'" Street) was filed for 200 feet, but again the FAA determined the height to be II 0 feet. No building at that time, was planned to be 200 feet. Project 14 (Rudee Loop) was filed for 200 feet, but determined by the FAA to be 110 feet. October 13, 2009 I II I - 6 - C IT Y MANA G E R 'S B R IE FIN G FAA RADAR UPDATE ITEM # 59255 (Continued) Mr. Herbert displayed a chart indicating a Summary of the FAA Determinations Summary of FAA Determinations OE NUMBER PROJECT PROPOSED HEIGHT FAA (FEETAGL) DETERMINATION OF MAXIMUM HEIGHT (FEET AGL) 2oo7-AEA-1721- OE Convention Center Hotel 260 180 (NPH issued 02-11-2007) Site 2007 -AEA-6294-0E Convention Center Hotel 207 110 (NPH issued 02-11-2008) Site 2009-AEA-212-0E Convention Center Hotel 180 110 2009-AEA-215-0E Site 2009 (NPH issued 06-24-2009) 2009-AEA-276-0E st 200 110 3 1 Street / Laskin (NPH issued 06-24-2009) Gateway 2009-AEA-274-0E Rudee Loop 200 110 (NPH issued 06-24-2009 Fiscal and Economic Impact of IIO-Foot Height Limit on Resort Area (in planned development areas) . Approximate forgone direct and indirect jobs: 2,488 . Over 50 years, lost City revenues are estimated at $ 1.3-BILLION October 13, 2009 I: - 7 - C IT Y MANA G E R 'S B R IE FIN G FAA RADAR UPDATE ITEM # 59255 (Continued) " ) ~~ * 35 Structures over 110 Feet Above Ground S\ RUt>'U" I; "" !~1:T October 13, 2009 , 'I I~ - 8 - C IT Y MANA G E R 'S B R IE FIN G FAA RADAR UPDATE ITEM # 59255 (Continued) October 13, 2009 I 'I I - 9 - C IT Y MANA G E R 'S B R IE FIN G FAA RADAR UPDATE ITEM # 59255 (Continued) October 13, 2009 I 'I I' - 10- CITY MANAGER'S BRIEFING FAA RADAR UPDATE ITEM # 59255 (Continued) Virginia Beach Development Timeline . Convention Center Hotel . Final responses from two developers for a 400 room hotel (Hyatt Regency or Marriott) received on September 15 . VEDA hopes to select a developer in November - December 2009 . Current plans are 180 and 110 feet tall October 13, 2009 Ii - 11 - C IT Y MANA G E R'S B R IE FIN G FAA RADAR UPDATE ITEM # 59255 (Continued) September 10,2009 Meeting in Washington, D.C. . Sponsored by Senators Webb, Warner and Congressman Nye . Attended by: . Congressional Staffers . Federal Aviation Administration . Department of Homeland Security · Office of Secretary of Defense . United States Air Force · NORAD . United States Navy . Virginia Beach City Staff . Commanding Officer, Oceana Naval Air Station Mitigation Study Timeline . What is the process for the study from this point forward? . How long will it take until completion of the study? . Who are, or will continue to be, the points of contact at the FAA and the USAF? Washington, DC Meeting Outcomes . FAA and USAF (United States Air Force) Points of Contact Assigned . Kenneth H Kingsmore, DoD LRR JPO (Department of Defense) (Long Range Radar and Joint Programs Officer - Program Manager, which is a combination of the Federal Aviation Administration and Air Force . Donna O'Neill, FAA Airspace Specialist . USAF 84th RADES - (Radar Evaluation Squadron) to reevaluate findings . Based on new panoramic photography, latitude and longitude of existing Oceanfront buildings (City provided data) . Includes computer modeling to determine if degradation to radar exists . Reports due out on October 16,2009 (probably through NORAD) Washington, DC Discussion Points . The City appreciates the cooperation and assistance given to this issue . The City understands that national defense and homeland security are the top priority . The City will continue to work with NAS Oceana to support their mission and continue their presence in Virginia Beach as the East Coast Master Jet Base for the Navy . The City supports all mitigation initiatives and will also support a radar relocation feasibility assessment if the FAA and USAF are willing to initiate one . Delegation sent list of questions for answer by FAA/USAF by mid-October 2009. Another meeting in Washington, D. C. to follow Next Steps . Receive Air Force Report . Work with consultants to review report . Seek Council guidance to pursue further mitigation or move into relocation process with support of Congressional Delegation October 13, 2009 - 12 - C IT Y MANA G E R 'S B R IE FIN G FAA RADAR UPDATE ITEM # 59255 (Continued) Councilman Dyer had requested the FAA Radar Briefing and expressed concern relative an inappropriate "letter to the Editor" from staff and he did not remember giving staff direction re the height of the buildings, There was an explicit directive to schedule one City Council Workshop per month commencing at 10:00 A.M This has not occurred October 13, 2009 [I - 13 - CITY MANA GER 'S BRIEFING PIER SETBACKS 2:37 P.M. ITEM # 59256 Karen Lasley, Zoning Administrator, introduced Associate City Attorney Kay Wilson to present summarizations of the State Code Regulations re piers. This background information is important. Associate City Attorney Kay Wilson advised: PIERS - AMENDMENTS TO THE CITY ZONING ORDINANCE ~ Per State Code, all riparian owners have a right to erect a private pier to reach navigable water. ~ The Virginia Marine Resources Commission (VMRC) regulates these private piers, In doing so, the VMRC regulates the size of L or T platforms, the impact on navigation or the width of the pier. ~ The City, by State Code, can regulate the placement of roofs, gazebos and boathouses on these piers. Karen Lasley advised that in Virginia Beach the majority of waterfront lots are zoned R-40 - Residential 40,000 minimum square foot lots, Ms. Lasley displayed a map depicting the Districts, with side yard and rear yard setbacks of 20 feet. A lot was displayed, which is fairly typical in Virginia Beach and has a stem, approximately 34 feet wide, which provides water access, Therefore, there is no way that this property owner can place a pier into the water and meet these two (2) twenty (20)-foot side yard setbacks. R-40 Residential District Side y~"wd set:back ::::: 20 feet Rear yard setback = 2.0 feet. Pier Setbacks Only required for any improvement which exceeds 16 inches in height. NO' setbacks requi,.ed below mean low water. Wetlands I-egulations ,.equire piers to be )' above wetlands vegetation. October 13, 2009 , II I~ - 14 - C IT Y MANA G E R 'S B R IE FIN G PIER SETBACKS ITEM # 59256 (Continued) Setback variances for Piers ~ State Code says a variance request should not be approved if the condition or situation of the property is general or recurring in nature ~ There are an average of six (6) per year approved by the Board of Zoning (BZA) = recurring in nature ~ Zoning Ordinance should be amended or BZA should stop approving variances to setbacks for piers Proposed Amendment No side or rear yard setbacks required for piers if: ~ The pier is no more thanfour-foot (4') wide ~ The pier is uncovered ~ No structures on the pier except uncovered boat lifts ~ Extends into the side or rear yards only where necessary to access navigable water This is a controversial amendment. There have been many e-mails and expressions of concern from citizens and attorneys, most of which is based upon two (2) cases. Choon Kim decided at his own risk, even with the reversal of the Board of Zoning Appeals' approval, to construct the pier, Ch<>C>nI Kim Varia. nee app.-c......ed by f1.2:A ~'_'n 12- I '9_2007 '"~'> all......"" p'l~" vvlt'h ... I O. ""u',t..~ y..... d .._-"back Rover-sed In Circuit Cc>u.-'c; c~n c:..,e..."".......b.",. 0.2.0()f.l October 13, 2009 - 15 - C IT Y MANA G E R 'S B R IE FIN G PIER SETBACKS ITEM # 59256 (Continued) At this point, since Mr. Kim did not prevail in Court, he has been requested to remove the pier. Mr. Kim filed an appeal to this decision. The Board of Zoning Appeals deferred this appeal to December 2009 at their last meeting, to allow the City Council to consider the amendments. If the proposed amendment is passed, Mr, Kim would not need a variance to keep the pier. Heenan Variance to allow a pier with 12' and 14' side yard setbacks instead of 20' as required was approved by BZA on October 4,1995 subject to site plan New owner - desires larger pier and boat lift Requests a variance to allow a 9' side yard setback on NW side instead of 12' as previously approved and to waive the condition attached in 1995. Denied by BZA on December 12,2006 In 1995, the lot displayed was owned by Kevin Riccio, who requested a variance to allow a pier. His neighbors objected at the time. The new owner, James Heenan, desired a larger pier and boat lift, This variance was denied by the Board of Zoning Appeals on December 12, 2006, October 13, 2009 II ~ June 10, 2009 ~ July 8, 2009 ~ August 25, 2009 ~ October 13, 2009 ~ October 27, 2009 - 16 - C IT Y MANA G E R 'S B R IE FIN G PIER SETBACKS ITEM # 59256 (Continued) Amendment Schedule Planning Commission defers to allow changes to the amendments Planning Commission Public Hearing. Recommended approval 11 to O. City Council defers for sixty (60) days Staffpresentation to City Council City Council Public Hearing October 13, 2009 I II II - 17 - C IT Y MANA G E R 'S B R IE FIN G CHINESE DRYWALL 2:55 P.M. ITEM # 59257 Cheri Hainer, Permits and Inspections Administrator - Planning, presented information re the status of the Chinese Drywall issue: Tainted Drywall Update . Inez Tenenbaum of the Consumer Product Safety Commission (CPSC) joined Senator Warner, Representatives Scott and Nye in visiting homes in Virginia Beach and Chesapeake which had been constructed with the questionable (Chinese) drywall. . Last week, Senator Nelson and Representative Wexler from Florida worked with Senators Mary Landrieu, Louisiana, Jim Webb and Mark Warner, Virginia, re correspondence to the Federal Emergency Management Agency (FEMA), asking whether it has the authority to provide aid to homeowners displaced by defective Chinese drywall, They requested a reply by November 7, 2009. Senator Warner has already been in contact with the Internal Revenue Service for possible tax relief for these homeowners. . The Consumer Product Safety Commission (CPSC) has received more than 1,500 complaints from twenty-seven (27) states, including Wisconsin, South Dakota and Washington, DC. about drywall. Reported use in Newport News and James City County o CPSC has a determination pending - Is it a Defective Product or a Hazardous Material? o Confirmed that during 2006, 6,997,456 sheets of Chinese drywall were imported into the United States o CPSC has visited the manufacturer and government officials in China. They are focusing on both scientific studies as well as tracing the chain of commerce o CPSC has conducted seventy-five (75) "in-depth investigations" with another twenty (20) in progress. They are also performing product and air sample testing to determine source of toxicity o The Environmental Protection Agency (EP A), ruled out radioactive! formaldehyde properties in drywall o Defective Product vs Hazardous Material determination will greatly affect the next course of action - this substantiates builders' insurance claims and class action suits . Center for Disease Control is continuing to monitor medical concerns associated with exposure to tainted drywall. To date, they are reporting no lingering effects - once source is removed, symptoms go away October 13, 2009 [ [I I[ - 18 - CITY MANA GER 'S BRIEFING CHINESE DRYWALL ITEM # 59257 (Continued) . Building Code Enforcement o Product not currently being used anywhere in Virginia Beach o Still gathering information as to where it has been used o Some builders have already started replacing drywall- others waitingfor CPSC determination o Builder in Chesapeake (hotel) filed building code appeal and lost at the locallevel, concurring that it was not an approved material. Now going to be heard by the Board of Housing /Technical Review Board (TRE) - their determination becomes an extension of the Code. o Based on Consumer Product Safety Commission (CPSC), Board of Housing /Technical Review Board (TRE), Federal Emergency Management Association (FEMA) and/or legislative actions, enforcement process will evolve Ms. Hainer advised disposal of the drywall is currently being made in the same manner as asbestos (i.e, bagging same and taken to the landfill). Manufacturers and the Us. Gypsum Association have recommended these procedures. It is not being recycled. The Environmental Protection Agency has not been strict in their enforcement. Councilman DeSteph referenced he sent approximately five hundred (500) letters re the Chinese drywall issue to elected officials, including President Obama, Councilman DeSteph has requested assistance for the citizens of Virginia Beach and other communities re the health risks and property damage caused by defective Chinese gypsum board ("drywall'J Samples of said correspondence are hereby made a part of the record. Councilman DeSteph referenced a response from Dr. Thomas W. Yun, dated October 2, 2009, advising receipt of Councilman DeSteph's letter of June 17, 2009. Dr, Yun advised the correspondence was directed to the Office of Medical Services at the United States Department of State. This office does not have the authority re Councilman DeSteph's request, The Department's Executive Secretariats' Office will transfer the letter to the Department of Housing and Urban Development's Office of the Executive Secretariat for proper response. Quick responses were received from the Consumer Product Safety Commission and the City's Senators and Delegates, Councilman DeSteph also distributed copies of his correspondence to Delegate Purkey requesting the Commissioner of Insurance review this matter in the same mater as James H Brown, Commissioner of Insurance for the State of Louisiana, Mr. Brown's correspondence is hereby made a part of the record. As soon as this issue was determined to be a problem, Permits and Inspections made it easy to receive a permit to handle the remediation, Ms. Hainer has reviewed the remediation which the Dragas Corporation utilizes for their affected developments. She has also worked with Chesapeake and some of the surrounding communities re assistance to homeowners re this issue. Councilman DeSteph referenced correspondence from the Real Estate Assessor re their policy on the Chinese Drywall issue. They have accepted a contractor's estimate of "cost to cure" from the property owner. If the property owner does not have an estimate, the improvement value will be reduced 50%. If a higher estimate is subsequently submitted, the reduction will be adjusted retroactively, assuming it is within the state mandated four year statute of limitations for changing assessments. Councilman DeSteph is working on a follow-up correspondence just received from President Obama on Monday, October 12, 2009, as well as the Consumer Product Safety Commission (CPSC), hoping a ruling can be established in November. October 13, 2009 Ii - 19 - C I T Y MANA G E R 'S B R IE FIN G CHINESE DRYWALL ITEM # 59257 (Continued) Senators Warner and Webb, at the Federal Level, are attempting to initiate a special tax credit re this issue. When Delegate Purkey is in Richmond, Councilman DeSteph hopes the Insurance Commission's ruling will be accelerated. Councilman Diezel advised it was his understanding the insurance companies were opposing Mrs. Dragas and her voluntary endeavors. If the drywall is declared defective, there may be an avenue for claims to be forced upon the insurance companies, If the drywall is declared hazardous material, the builder and homeowner will be affected. Councilman Diezel suggested City Council direct Ms. Hainer to testify before the State Board in terms of her professional opinion re the defective as opposed to hazardous material, unless, the opinion comes forward that this material is in effect hazardous. Councilman Villanueva expressed appreciation for the leadership on this issue and suggested the concept of natural disasters, such as flooding, might also be utilized re mitigating this financial burden on homeowners. Mayor Sessoms advised the homes (building) in their current situation do not have any value. If you cannot rent the home or live in it, the value is zero. The affected homeowners are grateful their assessment has been reducedfifty percent (50%), Mayor Sessoms requested the City Attorney Mark D. Stiles and Real Estate Assessor, Jerald D. Banagan, determine if more can be accomplished re this issue locally and include the impacts as far as the value being placed on the actual building. Mayor Sessoms requested the City Attorney and Real Estate Assessor present their opinions relative the value of the building and the steps to be taken locally at the October 27, 2009, City Council Session. October 13, 2009 I' - 20- CITY COUNCIL LIAISON REPORTS 3:15 P.M. ITEM # 59258 CITY AUDIT COMMITTEE Council Members Wood and Uhrin, City Council Liaisons, distributed the Audit Committee report, which is hereby made a part of the record. Lyndon Remias, City Auditor, and his staff met with the Audit Committee on September 17, 2009, The City Auditor provided a status update of the FY 2010 Audit Schedule and presented his proposed FY 10 Budget. Audits Reports: The City Auditor presented to the Audit Committee three (3) audit reports completed during the last quarter. These audit reports were also previously provided to each member of City Council: 1. Fire Prevention Program 2. Planning - Fee Collection Process 3. Sheriffs Office Supplemental Retirement Plan Fire Prevention Pro!!ram Based upon analysis of fire inspections performed, City Auditor determined that the Fire Marshal's Office is not providing annual comprehensive fire inspection coverage of all City commercial properties due to a staffing shortage. Plannin!! - Fee Collection Process City Auditor determined that the current internal controls presented in the fee collection process in the Department of Planning/Permits and Inspections Division are ineffectively designed to prevent, detect, or correct irregularities on a timely basis. FY 10 Audit Schedule - Chan!!e City Auditor informed the Audit Committee that the FY 2010 Audit Schedule would be slightly modified to add to the FY 2010 schedule a repeat audit of the Optima Healthcare Claims and to drop the audit of the Sheriff's Supplemental Retirement Plan Review (this audit will be performed by Cherry, Bekaert and Holland), Fraud, Waste and Abuse The City Auditor informed the Audit Committee that in the last quarter, fourteen (14) allegations of Fraud, Waste and Abuse cases were opened. October 13, 2009 I II II - 21 - CITY COUNCIL LIAISON REPORTS ITEM # 59259 TECHNOLOGY UPDATE Council Members Davis and Villanueva, Liaisons, distributed the Technology Update, which is hereby made a part of the record Councilman Villanueva referenced the Public Utilities Interactive Web Application Development, The Public Utilities Business Division and ComIT have completed the development and deployment of the "Public Utilities Online Services" application (!]tto://www.vbflov.com/puonlineservicesJ. The goal of this project was to internally develop an internet web application that provides customers with real time, 24/7, access to their water and sanitary sewer utility account information, bills and current balance, as well as to provide customers with interactive forms for submitting requests for service. Since the implementation of the network-based "Nightly Batch Processing" module on April 30, 2008, thru August 12, 2009, the system has successfully printed over I-MILLION bills and over 250,000 delinquent notices. Since implementation of the internet-based "Water Administration Module ", the Public Utilities Business Division has corrected over 2,300 bills and prepared over 2,000 adjustment notices. Previously, billing clerks spent approximately four (4) hours daily to perform these tasks. Now, tasks can be completed within a half hour, Public Utilities have also satisfied at least 1300 customer duplicate bill requests. In the first four (4) weeks that the "Public Utilities online Services" became available, over 925 users accessed the application (registered or sent an inquiry); more than 600 enrolled their accounts and viewed their account information, current balances, bills and water consumption history. In the future, the technology reports will be "shown" rather than told ITEM # 59260 HISTORIC PRESERVATION COMMISSION Council Members Wilson and Davis are Liaisons to the Historic Preservation Commission. Council Lady Wilson advised last week, the Historic Preservation Commission held a Town Meeting, at the Eastern Shore Chapel. This meeting was very well attended with between seventy and eighty citizens, The attendees prioritized their concerns and reflected the different processes. Council Lady Wilson expressed appreciation to the staff. ITEM # 59261 VIRGINIA AQUARIUM and MARINE SCIENCE CENTER RENOVATION PROJECT Council Members DeSteph and Wood, Liaisons to the Virginia Aquarium and Marine Science Center, distributed their report, which is hereby made a part of the record Although the FY 2009/10 Operating Budget shows the Aquarium will have a budget deficit of $403,348, the Aquarium generates $594,736 in direct tax revenue to the City an amount greater than the budgeted deficit, From a financial perspective, the net revenues, with the aquarium, generate approximately $191,000 more in taxes. It is definitely a revenue generator. The Restless Planet exhibits are scheduled to open to the public November 21,2009. October 13, 2009 II - 22- CITY COUNCIL LIAISON REPORTS ITEM # 59262 AGRICULTURAL ADVISORY COMMISSION BIKEWAYS AND TRAILS ADVISORY COMMITTEE Council Lady Henley, Liaison - Bikeways and Trails Advisory Committee and the Agricultural Advisory Commission, advised both Committees met yesterday, Monday, October 12, 2009. Both groups spoke relative the need for education and enforcement for bicyclists. Council Lady Wilson referenced bicycling opportunities and was pleased to note the City Council Agenda package re new on-road cycling opportunities for Aragona, Shore Drive and Dam Neck. With these two groups working on the same issue, some suggestions should be coming forth prior to next Spring. Mayor Sessoms suggested Police Chief Jacocks also become involved. October 13, 2009 II - 23 - CITY COUNCIL COMMENTS ITEM # 59263 3:25 P.M, Councilman Davis advised some theatre students from Green Run High School, on February 1, 2009, assisted in decreasing the cost of the "lights" in the auditorium, as well as being more conductive to theatrics, by changing over to LED's, This resulted in tremendous savings, between $10,000 and $12,000 over the course of the year. Other schools can take advantage of this concept. Mayor Sessoms extended appreciation to the students on behalf of the City Council. ITEM # 59264 Council Lady Henley referenced her discussions with the Southgate community re their BMP system. The residents are concerned relative an algae growth. They are concerned a blockage is causing the waterway not to flow properly. Public Works has reviewed and could not find any blockages, but have removed certain things, performing the mission of the City to be assured the storm water operates properly, David Hansen, Deputy City Manager, advised in response to Council Lady Henley's request and concerns of the Civic League, the City's engineering teams from Water Management visited the site and conducted a complete on-site recognizance of the BMPs (Best Management Practices). They all feed to the West Neck area and go down Princess Anne, take a left on Huckleberry Trail, where you can see the water and then circle around Smokehouse Road. After the on-site recognizance was conducted of the drainage system, Mr, Hansen met them and visited with the Civic League, The residents are not pleased with the green algae stagnated on the surface of the water. The residents are concerned about no-flow and our system supports insuring there is no threat to life or property. The City has assured there are no obstructions. In fact, the water is perhaps inches deep. In most places, there is not a lot of storm water flowing. There has not been much rain. There is no indication of back-ups. The upstream, of course, is higher than the downstream. Mr, Hansen has shared with the homeowners and Civic League President, names of the four (4) companies in the area which treat algae. It is not within the storm water rate structure to treat "green algae" that appears late in the Summer because of heat and nitrogen content. To do so, would mean the City would be treating seventy percent (70%) of all the bodies of water in the City. ITEM # 59265 Councilman Dyer advised as the City is working on the Comprehensive Plan, which will be the first one post BRAC, relationships with the military and the Department of Defense have significantly improved. Councilman Dyer suggested a strong Resolution of support be issued by the City Council to include the value of the military in the Comprehensive Plan, October 13, 2009 II - 24- CITY COUNCIL COMMENTS ITEM # 59266 Councilman Davis distributed two proposed Resolutions with accompanying Agenda Requests re the Clerk of Circuit Court. These Resolutions would be SCHEDULED for the City Council Session of October 27, 2009: Resolution Supplementing the 2010 Community Legislative Agenda By Adding a Proposal for Legislation Regarding Conversion of the Virginia Beach Clerk of Circuit Court's Office to a City Agency. A Resolution Directing the City Manager and the City Attorney to investigate ways for the City to Capture Fee Revenue Generated by the Clerk of the Circuit Court, Mayor Sessoms advised he contacted Delegate Purkey, Chairman of Finance, to determine his support. Delegate Purkey concurred with the suggestion. ITEM # 59267 Mayor Sessoms expressed appreciation to Council Members Harry Diezel and Glenn Davis. Councilman Diezel has agreed to serve as Chair of the Mayor's Committee on Employee Pensions. Councilman Davis will serve as Vice Chair. There will also be several other members serving that represent both the employees, as well as the community: Kenny Pravitz Hank Kim Anthony Jernigan Jim Flinchum Tom Langley Mayor Sessoms will prepare correspondence re completion of the work and preparation of a report. ITEM # 59268 Mayor Sessoms referenced the Air Show is this weekend. Saturday, October 17 and 18. 2009. Mayor Sessoms has been requested to present a Proclamation at 3:00 P,M, Saturday. Mayor Sessoms will be present Sunday, but unable to attend Saturday. Councilman Dyer will represent the Mayor and present the Proclamation. October 13, 2009 II - 25 - AGE N DA REV IE W S E S S ION ITEM # 59269 3:39 P.M. Councilman Davis suggested CZO amendments re the definition of adult bookstores. 5. Resolution to REFER to the Planning Commission an Ordinance to AMEND SIll of the City Zoning Ordinance (CZO) re the definition of adult bookstores The Adult Toy Shop opened in a strip mall at the intersection of Lynnhaven and Holland on or about April 2009. The City's Zoning Ordinance prohibits "adult bookstores" from locating within 500 feet of any single-or multiple-family dwelling or a school, but the Ordinance provides that in order to be classified as an "adult bookstore ", the retail establishment must (1) devote at least 25% of its stock for sale or rent to magazines, films, videos or paraphernalia that relates to specific sexual activities or specific anatomical areas; (2) devote 25% or more of its display area to such products; or, (3) receive in anyone-month period 25% or more of its gross income from the sale or rental of such materials. The Adult Shop went out of business and is no longer located in the strip mall, but the Zoning Ordinance, unless amended would allow a similar business to locate near residences and schools. The Amendment of the City Zoning Ordinance could prevent such a reoccurrence. It lowers the benchmark of 25% to 20% of the store's stock/display area/sales. ITEM # 59270 BY CONSENSUS, the following items shall compose the CONSENT AGENDA: I ORDINANCES/RESOLUTIONS 1. Ordinance to A UTHORIZE the City Manager to execute a Deed conveying the Lynnhaven Middle School site to the School Board. 2. Ordinance to AUTHORIZE the City Manager to ACCEPT the dedication of a parcel of land near Kings Grant Elementary at 586 North Lynnhaven Road. DISTRICT 5 - LYNNHA VEN 3, Ordinance re the ASSIGNMENT of the Sublease for the First Tee at the Virginia Beach National Golf Course from Hampton Roads Junior Golf Foundation to the YMCA of South Hampton Roads. 4, Resolution re an AGREEMENT between the City and the Hampton Roads Center for Civic Engagement (HRCCE) to provide a Transportation Dialogue program to complete the public input process. 5. Resolution to REFER to the Planning Commission an Ordinance to AMEND SIll of the City Zoning Ordinance (CZO) re the definition of adult bookstores. 6. Ordinance to A UTHORIZE a temporary encroachment into a portion of City- owned right-of-way for SAMUEL W. ZIMMER to remove an existing block paver wall and a portion of an existing brick walk to construct and maintain a cobblestone curb and modifY an existing cobblestone planter at 53-1f2 Street and 5303 Ocean Front Avenue, DISTRICT 5 - LYNNHA VEN (Deferred September 22, 2009) October 13, 2009 I II II - 26 - AGE N DA REV I E W S E S S ION ITEM # 59270 (Continued) 7, Ordinance to ESTABLISH the FEMA Administrative Cost Grant, a subgroup of the Emergency FEMA Fund, TRANSFER $99,852 and $184,157 from the Federal Emergency Management Agency (FEMA) deployment grants re the Virginia Task Force 2 Urban Search and Rescue Team. 8. Ordinance to APPROPRIATE $93,430 to the Police Department's FY2009-10 Operating Budgetfrom the fund balance of the DEA Seized Property Special Revenue Fund re purchase of equipment. 9. Ordinance to A CCEPT and APPROPRIA TE from the Department of Criminal Justice Services (DCJS) $20,847 additional funding to the Commonwealth Attorney's Office FY 2009-10 Operating Budget re the Victim Witness Program 10. Ordinance to APPROPRIATE $9, 940from thefund balance of the Proffer Impact Fund to refund overpayment of open space proffer fees to The Victoria Park Residential Development. October 13, 2009 [i - 27- AGE N DA REV IE W S E S S ION ITEM # 59271 BY CONSENSUS, thefollowing items shall compose the PLANNING BY CONSENT AGENDA: J. PLANNING 1. Application of SANDLER A T BRENNEMAN FARM, L.L. C. for an Amendment to PD-H2 Land Use Plan at Brenneman Farm (Nichols Park at Lexington) to convert 76 three (3)-story carriage-style homes to 76 two (2)-story townhomes at Nichols Ridge Road, Willow Croft Drive and Totteridge Lane. ISTRICT 2 - KEMPSVILLE 2. Application of HEBRON CORNERSTONE CHURCH INTERNATIONAL/CS COMMERCIAL PROPERTIES, LLC,for a Conditional Use Permit re a church renovation at 5565 Virginia Beach Boulevard. DISTRICT 2 - KEMPSVILLE 3 3. Application of ATLANTIC MARINE CONSTRUCTION, INC.for a Conditional Use Permit re a bulk storage yard at 3465 Chandler Creek Road. DISTRICT 3 - ROSE HALL 4. Application of BOB and DEBRA BURTON for a Conditional Use Permit re a residential kennel at 1425 Drum Point Road. DISTRICT 7 - PRINCESS ANNE 5. Application of HAMPTON ROADS YOUTH and COMMUNITY ADVISORY COUNCIL/PINEY GROVE BAPTIST CHURCH for Modification of Conditions (approved by City Council on April 11, 1988) to add portable classrooms at 2804 Holland Road. DISTRICT 7 - PRINCESS ANNE October 13, 2009 II - 28 - ITEM # 59272 Mavor William D. Sessoms, Jr. entertained a motion to permit City Council to conduct its CLOSED SESSION, pursuant to Section 2.2-371l(A), Code of Virginia, as amended,for the following purpose: PERSONNEL MATTERS: Discussion, consideration oj, or interviews of prospective candidates for employment, assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of specific public officers, appointees or employees pursuant to Section 2,2-3711 (A)(1) Council Appointments: Boards, Commissions, Committees, Authorities, Agencies and Appointees Evaluation of Council Appointees PUBLICLY-HELD PROPERTY: Discussion or consideration of the, acquisition, or of the disposition of publicly-held property, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body pursuant to Section 2.2-3711 (A)(3). Acquisition/Disposition of City Property: Rose Hall Districtt Lynnhaven District PUBLIC CONTRACT: Discussion of the award of a public contract involving the expenditure of public funds, and discussion of the terms or scope of such contract, where discussion in an open session would adversely affect the bargaining position or negotiating strategy of the public body, pursuant to Section 2.2-3711 (A) (30) Adoption Friendly Animal Care and Control Facility PPEA Upon motion by Council Lady Wilson, seconded by Councilman Dyer, City Council voted to proceed into CLOSED SESSION at 3:35 P.M. October 13, 2009 II Voting: 11-0 - 29- ITEM # 59272 (Continued) Council Members Voting Aye: Glenn R. Davis, William R, "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D, Sessoms, Jr., John E. Uhrin, Ron A, Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None (Break: (Closed Session: (Appointees: (Dinner: 3:37 P.M. - 3:45 P.M.) 3:45 P.M. - 4:40 P.M.) 4:40 P.M. - 5:35 P.M.) 5:35 P.M. - 5:55 P.M.) October 13, 2009 I II II - 30 - FORMAL SESSION VIRGINIA BEACH CITY COUNCIL October 13,2009 6:00 P.M. Mayor William D, Sessoms, Jr. called to order the FORMAL SESSION of the VIRGINIA BEACH CITY COUNCIL in the Council Chamber, City Hall Building, on Tuesday, October 13, 2009, at 6:00 P.M Council Members Present: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Absent: None INVOCA TION: Reverend Karl Sexton Pastor Gateway Freewill Baptist Church PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA Mayor Sessoms DISCLOSED as an officer of TowneBank (which has a corporate office located at 297 Constitution Drive in Virginia Beach), he is directly and indirectly involved in many of TowneBank's transactions. However, due to the size of TowneBank and the volume of transactions it handles, TowneBank has an interest in numerous matters in which he is not personally involved and of which he does not have personal knowledge, In that regard, he is always concerned about the appearance of impropriety that might arise if he unknowingly participates in a matter before City Council in which TowneBank has an interest. Mayor Sessoms also has similar concerns with respect to Prudential Towne Realty, which is an affiliate of TowneBank. In order to ensure his compliance with both the letter and spirit of the State and Local Government Conflict of Interests Act (the "Ac!'), it is his practice to thoroughly review each City Council agenda to identify any matters in which he might have an actual or potential conflict. If, during his review of an agenda, he identifies a matter in which he has a "personal interest ", as defined by the Act, he will either abstain from voting, or file the appropriate disclosure letter with the City Clerk to be included in the official records of City Council. Mayor Sessoms' letter of March 24, 2009, is hereby made a part of the record. Vice Mayor Jones DISCLOSED, for many years, he served on the Board of Directors of Resource Bank. Three (3) years ago, Fulton Financial Corporation ("Fulton Financial') purchased Resource Bank. On March 31, 2007, Vice Mayor Jones retired from the Board of Directors. Although, he is no longer a Board Member, he owns stock in Fulton Financial, and that stock ownership causes him to have a "personal interest" in Fulton Financial, However, due to the size of Fulton Financial and the volume of transactions it handles in any given year, Fulton Financial, or any of the banks that are owned by Fulton Financial, may have an interest in numerous matters in which Vice Mayor Jones has no personal knowledge, In order to ensure his compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is his practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which he might have an actual or potential conflict. If, during his review, he identifies any matters, Vice Mayor Jones will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Vice Mayor Jones regularly makes this disclosure. Vice Mayor Jones' letter of April 1 0, 2007, is hereby made a part of the record. October 13, 2009 ! II II - 31 - Council Lady Rosemary Wilson DISCLOSED her husband is a principal in the accounting firm of Goodman and Company and is directly and indirectly involved in many of Goodman and Company's transactions. However, due to the size of Goodman and Company and the volume of transactions it handles in any given year, Goodman and Company has an interest in numerous matters in which her husband is not personally involved and of which she does not have personal knowledge. In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which she might have an actual or potential conflict, If, during her review she identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure. Council Lady Wilson's letter of January 27, 2004, is hereby made a part of the record. Council Lady Rosemary Wilson DISCLOSED she is a Real Estate Agent affiliated with Prudential Decker Realty. Because of the nature of Real Estate Agent affiliation, the size of Prudential, and the volume of transactions it handles in any given year, Prudential has an interest in numerous matters in which she is not personally involved and of which she does not have personal knowledge, In order to ensure her compliance with both the letter and the spirit of the State and Local Government Conflict of Interests Act, it is her practice to thoroughly review the agenda for each meeting of City Council for the purpose of identifying any matters in which she might have an actual or potential conflict. If, during her review she identifies any matters, she will prepare and file the appropriate disclosure letter to be recorded in the official records of City Council. Council Lady Wilson regularly makes this disclosure. Council Lady Wilson's letter of January 27, 2004, is hereby made a part of the record. October 13, 2009 [I - 32 - Item V-E. CERTIFICA TION ITEM # 59273 Upon motion by Councilman Wilson, seconded by Councilman Dyer, City Council CERTIFIED THE CLOSED SESSION TO BE IN ACCORDANCE WITH THE MOTION TO RECESS. Only public business matters lawfully exempt from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies. AND, Only such public business matters as were identified in the motion convening the Closed Session were heard, discussed or considered by Virginia Beach City Council. Voting: 11-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D, Sessoms, Jr., John E. Uhrin, Ron A, Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 I II II RESOLUTION CERTIFICATION OF CLOSED SESSION VIRGINIA BEACH CITY COUNCIL WHEREAS: The Virginia Beach City Council convened into CLOSED SESSION, pursuant to the affirmative vote recorded in ITEM #59272, Page 29, and in accordance with the provisions of The Virginia Freedom of Information Act, and, WHEREAS: Section 2.2-3712 of the Code of Virginia requires a certification by the governing body that such Closed Session was conducted in conformity with Virginia law, NOlif, THEREFORE, BE IT RESOL VED: That the Virginia Beach City Council hereby certifies that, to the best of each member's knowledge, (a) only public business matters lawfully exempted from Open Meeting requirements by Virginia law were discussed in Closed Session to which this certification resolution applies; and, (b) only such public business matters as were identified in the motion convening this Closed Session were heard, discussed or considered by Virginia Beach City Council. th Hodges Fraser, MMC City Clerk October 13, 2009 I II II - 33 - Item V-F.] ITEM # 59274 Upon motion by Councilman Diezel, seconded by Councilman Davis. City Council APPROVED the MINUTES of the FORMAL SESSION of September 22,2009 Voting: 11-0 Council Members Voting Aye: Glenn R. Davis, William R, "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr" John E. Uhrin, Ron A. Villanueva. Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October J 3, 2009 - 34 - Item V-G.J. ADOPT AGENDA FOR FORMAL SESSION ITEM # 59275 BY CONSENSUS, City Council ADOPTED: AGENDA FOR THE FORMAL SESSION Voting: 11-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr" John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 I II II - 35 - Item V-I. ORDINANCES/RESOLUTIONS ITEM # 59276 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council APPROVED in ONE MOTION Items 1,2,3,4,5,6,7,8,9 and 10 of the CONSENT AGENDA. Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R, "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 [I - 36 - Item V-I.1. ORDINANCES/RESOLUTIONS ITEM # 59277 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinance to A UTHORIZE the City Manager to execute a Deed conveying the Lynnhaven Middle School site to the School Board Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R, "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A, Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 II 1 AN ORDINANCE AUTHORIZING THE CITY 2 MANAGER TO EXECUTE A DEED CONVEYING THE 3 CITY'S INTEREST IN THE L YNNHAVEN MIDDLE 4 SCHOOL SITE TO THE SCHOOL BOARD 5 6 WHEREAS, based upon a title examination performed on the Lynnhaven Middle 7 School site located at 1250 Bayne Drive (GPIN: 2408-35-7034) (the "School Site"), it 8 was determined that the School Site is owned by the City of Virginia Beach; 9 10 WHEREAS, Virginia Code 922.1-125 requires that title to all school property be 11 vested in the School Board absent an agreement between the School Board and the 12 City to the contrary; and 13 14 WHEREAS, it is appropriate that title to the School Site be transferred from the 15 City to the School Board. 16 17 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 18 VIRGINIA BEACH, VIRGINIA: 19 20 That the City Manager is hereby authorized to execute a deed conveying to the 21 School Board of the City of Virginia Beach, Virginia, the Lynnhaven Middle School site. 22 23 Adopted by the Council of the City of Virginia Beach, Virginia, on the 13th day 24 of October , 2009. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~~~~ City Attorney's Office CA-11208 Ilvbgov. comldfs 1 lapplicationslcitylawprodlcycom321 WpdocslDO 12IP006100021894 .DOC R-1 October 13, 2009 II - 37 - Item V-1.2. ORDINANCES/RESOLUTIONS ITEM # 59278 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinance to AUTHORIZE the City Manager to ACCEPT the dedication of a parcel of land near Kings Grant Elementary School at 586 North Lynnhaven Road. DISTRICT 5 - LYNNHA VEN Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R, "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 [I 1 AN ORDINANCE AUTHORIZING THE CITY 2 MANAGER TO ACCEPT ON BEHALF OF THE CITY 3 THE DEDICATION OF 12,348 SQ. FT. OF LAND 4 NEAR KINGS GRANT ELEMENTARY FROM THE 5 SCHOOL BOARD OF THE CITY (L YNNHA VEN 6 BOROUGH) 7 8 WHEREAS, the City of Virginia Beach owns the Lynnhaven Athletic Complex site 9 (GPIN 1487-99-8119, formerly 1487-99-7303); 10 11 WHEREAS, the School Board of the City of Virginia Beach owns the Kings Grant 12 Elementary School site (GPIN 1487-89-8764, formerly 1487-89-8645); 13 14 WHEREAS, a driveway consisting of 12,348 square feet (the "Encroachment 15 Area") leading to the Lynnhaven Athletic Complex site currently encroaches on the 16 Kings Grant Elementary School site; 17 18 WHEREAS, the School Board of the City of Virginia Beach has decided to 19 dedicate the Encroachment Area to the City of Virginia Beach to effectively eliminate the 20 encroachment; and 21 22 WHEREAS, the City of Virginia Beach agrees to accept the dedication of the 23 Encroachment Area from the School Board of the City of Virginia Beach. 24 25 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 26 VIRGINIA BEACH, VIRGINIA: 27 28 That the City Manager is hereby authorized to execute a deed on behalf of the 29 City of Virginia Beach accepting from the School Board of the City of Virginia Beach the 30 dedication of 12,348 square feet of land as more particularly described on Exhibit A 31 attached hereto and made a part of this Ordinance. 32 33 Adopted by the Council of the City of Virginia Beach, Virginia, on the 13th day 34 of October , 2009. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~. <~"c. P. s;n ~ . rl 1)\~~ .. City Attorney's Office CA-11206 \ \vbgov.com\dfs 1 \applications\citylawprod\cycom32\ Wpdocs\DO 12\P006\00021894.DOC R-1 October 13, 2009 II EXHIBIT A ALL THAT certain lot, piece or parcel of land, together with the improvements thereon, situate, lying and being in the City of Virginia Beach, Virginia designated and described as "AREA TO BE CONVEYED TO THE CITY OF VIRGINIA BEACH 12,348 SQ. FT. OR 0.28348 Ac. (INCLUDED WITHIN AREA OF PARK SITE C)", as shown on that certain plat entitled "RESUBDIVISION OF LANDS OF THE CITY OF VIRGINIA BEACH (INST. #20070803001054950) (M.B. 40 PG. 55) AND SCHOOL BOARD OF THE CITY OF VIRGINIA BEACH (D.B. 658 PG. 17)(M.B. 51 PG. 20) CITY OF VIRGINIA BEACH", Scale 1" = 1 00', dated April 21, 2009 and revised through May 26, 2009, prepared by Department of Public Works/Engineering Division/Survey Bureau, City of Virginia Beach, Virginia, which plat will be duly recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia. z on~ "'~"' In :D ~~8 ~~~ " :D NAn ~:-::;; ~m~ :r a In ",,,r- '-lUJ--I , ,;p ~~~ Ul..", "r- , . rn n ZZ6 "":0 "'<>>0 rsi":m "<>>rn ..:"'~ <>>-- . . z rn",,,, ~~~ ~cgO ",'" .... w~ ~ ~w~ ~.... -t VI m m VI ~ J: m 2 ~ r- -n Z 0 m ;;I Z VI 0 m -I m m VI Vl J: ~ m ~ 0 W (j m ~ ::n ~ 0 Z VI ~' ~ ;,. ~ lIj ~ .ll ~ ::I: t N ~ 8 ~ ~ ~ g r-."o !il ~ ~'" '" ~~~ es ~~ f:lil~li5gi~ ! ~IP: ~ ~ I ~ I i~~~~I;~ ~~lil '" ~ h liS a~ i . s~ ~ ~ '~ ~ !;~ ~ ~ ~ ~ I ~ ~ ::I: .. ~ i jl! 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J'~ ~ co~.:~\\ oS ~~~Q~i ~ - ~ i~ ~ u ~~ ~ ~ U } ~ ~I ;< to. 'l-~ ~ ~!.~I~a / '!i'ijC>' ~ ~tQ~ I ~ ~Q !il ~ S ~ 0 '" 1 ~ "1 ;< i ~B~ ~ h - :11 i,:.li- ~ <II ~~I; I \~ . ~l' ~ ; 'P'- ::t ~ ~ g.. li~ ~ a~ ~ HI ~..ai ~ ~ "''jie.A..... ~ ~ '" ~y,,,,\C)"'" ... ........... 0 a .." ... II - 38 - Item V-I. 3. ORDINANCES/RESOLUTIONS ITEM # 59279 Upon motion by Vice Mayor Jones. seconded by Councilman Dyer, City Council ADOPTED: Ordinance re the ASSIGNMENT of the Sublease for the First Tee at the Virginia Beach National Golf Course from Hampton Roads Junior Golf Foundation to the YMCA of South Hampton Roads. Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A, Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 II 1 AN ORDINANCE TO APPROVE THE ASSIGNMENT 2 OF THE SUBLEASE FOR THE FIRST TEE AT 3 VIRGINIA BEACH NATIONAL GOLF COURSE FROM 4 HAMPTON ROADS JUNIOR GOLF FOUNDATION TO 5 YMCA OF SOUTH HAMPTON ROADS 6 7 WHEREAS, the Virginia Beach National Golf Course ("VBN") is owned by the 8 City of Virginia Beach (the "City") and leased to the Virginia Beach Development 9 Authority ("VBDA"); 10 11 WHEREAS, VBDA subleased VBN to the Tournament Players Club of Virginia 12 Beach, L.L.C. ("TPC") and TPC then sub-subleased a portion of VBN (the "Foundation 13 Sublease") to Hampton Roads Junior Golf Foundation (the "Foundation") for the 14 construction and operation of the First Tee of Hampton Roads (the "First Tee"); 15 16 WHEREAS, in addition to the Foundation Sublease, the City and VBDA are 1 7 parties to a Memorandum of Understanding with the Foundation setting forth the terms 18 and conditions for the construction and operation of the First Tee (the "MOU"); 19 2 0 WHEREAS, in 2005, the City, VBDA, the Foundation and TPC entered into a 21 modification of the MOU where VBDA joined TPC as a sub-landlord under the 22 Foundation Sublease. In 2007, the sublease from VBDA to TPC was terminated, 23 leaving VBDA and the Foundation as the sole remaining parties to the Foundation 24 Sublease; 25 26 WHEREAS, the Foundation has requested that the City and VBDA consent to 27 the Foundation's assignment of all of its rights under the sub-sublease and MOU to the 28 YMCA of South Hampton Roads (the "YMCA"); and 29 30 WHEREAS, the VBDA approved the assignment of the Foundation's rights under 31 the Foundation Sublease to the YMCA at the VBDA's August 18, 2009 meeting. 32 33 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 34 VIRGINIA BEACH, VIRGINIA: 35 36 1. The Council of the City of Virginia hereby approves the assignment of the 37 interest of Hampton Roads Junior Golf Foundation, a Virginia non-profit corporation (the 38 "Foundation") in (i) that certain Sub-Sublease between the City of Virginia Beach 39 Development Authority ("VB DA") , the City of Virginia Beach (the "City"), and the 40 Foundation, and (ii) that certain Memorandum of Understanding between the City, 41 VBDA and the Foundation dated as of May 16, 2000, and modified as of August 18, 42 2005, to the YMCA of South Hampton Roads. 43 II 44 2. That the City Manager or his designee is hereby authorized to execute all 45 documents necessary or appropriate in connection with the said assignment, so long as 46 such documents are acceptable to the City Manager and in a form deemed satisfactory 47 by the City Attorney. 48 49 Adopted by the Council of the City of Virginia Beach, Virginia on the 13th day 50 of October ,2009. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: ~~ Economic Development City Attorney's Office CA11201 \\vbgov.com\dfs 1 lapplications\citylawprod\cycom3 2\ WpdocsID031 IP003\00023 589 .DOC R-1 October 1, 2009 II - 39 - Item V-IA. ORDINANCES/RESOLUTIONS ITEM # 59280 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Resolution re an AGREEMENT between the City and the Hampton Roads Center for Civic Engagement (HRCCE) to provide a Transportation Dialogue program to complete the public input process Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D, Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 II 1 A RESOLUTION APPROVING AN AGREEMENT 2 BE1WEEN THE CITY AND THE HAMPTON ROADS 3 CENTER FOR CIVIC ENGAGEMENT TO PROVIDE A 4 TRANSPORTATION DIALOGUE PROGRAM 5 6 WHEREAS, the City Council has identified transportation as a top priority for the 7 near future; and 8 9 WHEREAS, the Hampton Roads Center for Civic Engagement (HRCCE) is a 10 local, non-profit organization dedicated to improving the communication processes 11 between citizens, local governments, and other stakeholders; and 12 13 WHEREAS, it is important that the transportation dialogue with the City's citizens 14 be as open and objective as possible; and 15 16 WHEREAS, the HRCCE has worked with staff to outline a process to conduct a 17 yearlong community discussion and public input process to address all aspects of 18 transportation facing the City; and 19 20 WHEREAS, the City desires to use the HRCCE to create opportunities for 21 citizens to seriously discuss transportation options and priorities for the City's future. 22 23 BE IT RESOLVED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 24 VIRGINIA: 25 26 That the City Council hereby approves of the City entering into an agreement 27 with the HRCCE to provide a yearlong program designed to enhance the public input 28 process on the topic of transportation. 29 30 BE IT FURTHER RESOLVED that $50,653 is hereby transferred from CIP #9- 31 260, Economic and Tourism Development Partnerships and $12,347 is hereby 32 transferred from the Reserve for Contingencies to the FY 2009-10 Non-Departmental 33 Operating Budget to provide funding to the HRCCE for the purpose of completing the 34 public input process on the topic of transportation. Adopted by the Council of the City of Virginia Beach, Virginia, on the 2tl1ay of October , 2009. APPROVED AS TO CONTENT: APPROVED AS TO LEGAL SUFFICIENCY: :p~~ 1)cvW)Q ~~ Management Services CA11294 R-2 October 2,2009 II - 40- Item V-I.5. ORDINANCES/RESOLUTIONS ITEM # 59281 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Resolution to REFER to the Planning Commission an Ordinance to AMEND JIll of the City Zoning Ordinance (CZO) re the definition of adult bookstores. Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph. Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 I 1 A RESOLUTION REFERRING TO THE PLANNING 2 COMMISSION AN ORDINANCE TO AMEND 3 SECTION 111 OF THE CITY ZONING ORDINANCE 4 PERTAINING TO THE DEFINITION OF ADULT 5 BOOKSTORES 6 7 NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF 8 VIRGINIA BEACH, VIRGINIA: 9 10 That the above-entitled ordinance, a copy of which is attached, is hereby referred 11 to the Planning Commission for its consideration and recommendation. 12 13 Adopted by the City Council of the City of Virginia Beach, Virginia, this 13th 14 day of October , 2009. APPROVED AS TO LEGAL SUFFICIENCY: ~~ City Attorney's Office ~ CA11296 R-1 October 6, 2009 [I REQUESTED BY COUNCILMEMBER DAVIS 1 AN ORDINANCE TO AMEND CITY ZONING 2 ORDINANCE SECTION 111 PERTAINING TO THE 3 DEFINITION OF ADULT BOOKSTORES 4 5 Section Amended: City Zoning Ordinance 9111 6 7 8 WHEREAS, the public necessity, convenience, general welfare and good zoning 9 practice so require; 10 11 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 12 VIRGINIA BEACH, VIRGINIA: 13 14 That Section 111 of the City Zoning Ordinance is hereby amended to read as 15 follows: 16 17 Sec. 111. Definitions. 18 19 For the purpose of this ordinance, words used in the present tense shall include 20 the future; words used in the singular number include the plural and the plural the 21 singular; the use of any gender shall be applicable to all genders; the word "shall" is 22 mandatory; the word "may" is permissive; the word "land" includes only the area 23 described as being above mean sea level; and the word "person" includes an individual, 24 a partnership, association, or corporation. 25 26 In addition, the following terms shall be defined as herein indicated: 27 28 29 30 Adult bookstore. An "adult bookstore" is: An establishment that either (a) has 31 twenty-#ve (2-a 20) percent or more of its stock for sale or rent on the premises, or has 32 twenty-#ve (2-a 20) percent or more of its stock on display either in plain view or in an 33 enclosed or partitioned area, in books, magazines, periodicals, drawings, sculptures, 34 devices, paraphernalia, motion pictures, films, video taJ3es recordinqs or photographs 35 which are distinguished or characterized by their emphasis on matter depicting, 36 describing or relating to "specified sexual activities or specified anatomical areas" as 37 defined herein; or (b) devotes twenty-#ve (2-a 20) percent or more of its display area or 38 floor space, excluding aisles and storage areas, to the sale or display of such materials; 39 or (c) receives in anyone-month period twenty-#ve (2a 20) percent or more of its gross 40 income from the sale or rental of such materials; or (d) has on the premises one (1) or 41 more mechanical or more mechanical or electronic devices for viewing such materials~ 42 or (e) sells product featurinq "specified sexual activities or specified anatomical areas" 43 and prohibits access by minors, because of aqe, to any area of the premises that is 44 open to customers, and advertises itself as offering "adult" or "xxx" or "x-rated" or [I 45 "erotic" or "sexual" or "pornoqraphic" material on siqnaqe visible from a public riqht-of- 46 way. 47 48 (a) Specified anatomical areas: 49 (1) Less than completely and opaquely covered: 50 (i) Human genitals, pubic region, buttock; and 51 (ii) Female breast below a point immediately above the top of the 52 areola. 53 (2) Human male genitals in a discernibly turgid state, even if completely 54 and opaquely covered. 55 56 (b) Specified sexual activities: 57 (1) Human genitals in a state of sexual stimulation or arousal. 58 (2) Acts of human masturbation, sadomasochistic abuse, sexual 59 penetration with an inanimate object, sexual intercourse or sodomy. 60 (3) Fondling or other erotic touching or human genitals, pubic region, 61 buttock or female breast. 62 63 64 of Adopted by the City Council of the City of Virginia Beach on the ,2009. APPROVED AS TO LEGAL SUFFICIENCY: -;e ~ :f--- City Attorney's Office CA11288 R-2 October 6,2009 2 day II - 41 - Item V-I. 6. ORDINANCES/RESOLUTIONS ITEM # 59282 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinance to AUTHORIZE a temporary encroachment into a portion of City-owned right-ofway for SAMUEL W. ZIMMER to remove an existing block paver wall and a portion of an existing brick walk to construct and maintain a cobblestone curb and modify an existing cobblestone planter at 53-~ Street and 5303 Ocean Front Avenue. DISTRICT 5 - LYNNHA VEN (Deferred September 22, 2009) The following conditions shall be required: 1. In consideration of the premises and of the benefits accruing, or to accrue, to the Applicant and for the further consideration of One Dollar ($1. 00), in hand paid to the City, receipt of which is hereby acknowledged, the City hereby grants to the Applicant permission to use the Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. 2. The Temporary Encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach. 3. Nothing herein shall prohibit the City from immediately removing, or ordering the Applicant to remove, all or any part of the Temporary Encroachment from the Encroachment Area in the event of an emergency or public necessity and Applicant shall bear all costs and expenses of such removal. 4. The Temporary Encroachment terminates upon notice by the City to the Applicant and within thirty (30) days after the notice is given the Temporary Encroachment must be removed from the Encroachment Area by the Applicant and the Applicant will bear all costs and expenses of such removal. 5. The Applicant shall indemnify, hold harmless and defend the City, its agents and employees. from and against all claims, damages, losses and expenses, including reasonable attorney's fees, in case it shall be necessary to file or defend an action arising out of the construction, location or existence of the Temporary Encroachment. 6. Nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein, and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Applicant. 7. The Applicant agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. October 13, 2009 II - 42- Item V-I.6. ORDINANCES/RESOLUTIONS ITEM # 59282 (Continued) 8. The Applicant must submit and have approved a traffic control plan before commencing work in the Encroachment Area. 9. The Applicant agrees that no open cut of the public roadway will be allowed, except under extreme circumstances. Requests for exceptions must be submitted to the Highway Operations Division, Department of Public Works, for final approval. 10. The Applicant must obtain a permit from the Department of Planning prior to commencing any construction within the Encroachment Area. II. Prior to issuance of a right-ofway/utility easement permit, the Applicant must post a bond or other security. in the amount of two times their engineer's cost estimate, to the Department of Planning to guard against damage to City property or facilities during construction. 12. The Applicant must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Applicant also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Applicant will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The Applicant assumes all responsibilities and liabilities, vested or contingent, with relation to the construction, location and/or existence of the Temporary Encroachment. 13. The Temporary Encroachment must conform to the minimum setback requirements as established by the City. 14. The Applicant must submit for review and approval a survey of the Encroachment Area certified by a registered professional engineer or a licensed land surveyor and/or "as built" plans of the Temporary Encroachment sealed by a registered professional engineer, if required by either the City Engineer's Office or the Engineering Division of the Department of Public Utilities. 15. The City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Applicant and collect the cost in any manner provided by law for the collection of local or state taxes, may require the Applicant to remove the Temporary Encroachment, and pending such removal, the City may charge the Applicant for the use of the Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Applicant. If such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100,00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter and may collect such compensation and penalties in any manner provided by law for the collection of local or state taxes. October 13, 2009 [I - 43 - Item V-I 6. ORDINANCES/RESOLUTIONS ITEM # 59282 (Continued) Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R, "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 [I 1 Requested by Department ot Public Works 2 3 AN ORDINANCE TO AUTHORIZE 4 TEMPORARY ENCROACHMENTS 5 INTO PORTIONS OF CITY RIGHTS- 6 OF-WAY KNOWN AS 53% STREET 7 AND OCEAN FRONT AVENUE FOR 8 SAMUEL W. ZIMMER 9 10 WHEREAS, SAMUEL W. ZIMMER desires to remove an existing block paver 11 wall and a portion ot an existing brick walk that currently encroaches approximately 3' 12 into the right-ot-way ot 53% Street, and in its place to construct and maintain a 6" 13 cobblestone curb, approximately 2' into the 53% Street right-ot-way, with an asphalt 14 pavement expansion, and to modity an existing cobblestone planter located in the 15 rights-ot-way ot 53% Street and Ocean Front Avenue, and to maintain existing pavers 16 in the Ocean Front Avenue right-ot-way, located adjacent to his property at 5303 Ocean 17 Front Avenue, Virginia Beach, Virginia. 18 19 WHEREAS, City Council is authorized pursuant to SS 15.2-2009 and 15.2-2107, 20 Code ot Virginia, 1950, as amended, to authorize temporary encroachments upon the 21 City's right-ot-way subject to such terms and conditions as Council may prescribe. 22 23 NOW, THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 24 VIRGINIA BEACH, VIRGINIA: 25 That pursuant to the authority and to the extent thereot contained in SS 15.2- 26 2009 and 15.2-2107, Code ot Virginia, 1950, as amended, SAMUEL W. ZIMMER, his 27 heirs, assigns and successors in title are authorized to construct and maintain 28 temporary encroachments tor a 6" cobblestone curb, approximately 2' into the 53% 29 Street right-ot-way, with asphalt pavement expansion, and to modity an existing 30 cobblestone planter located in the rights-ot-way ot 53% Street and Ocean Front Avenue, 31 and to maintain existing pavers in the Ocean Front Avenue right-ot-way, all as shown on 32 the map marked Exhibit "A", consisting ot three (3) sheets and entitled: 33 "ENCROACHMENT AGREEMENT EXHIBIT ZIMMER RESIDENCE GPIN 2418-89- 34 6893-5303 CONDOMINIUM PLAT 53RD AND OCEAN FRONT CONDOMINIUM BEING 35 LOT 13, BLOCK 3, UBERMEER (M.B. 7, P. 150) VIRGINIA BEACH, VIRGINIA," a copy 36 ot which is on tile in the Department ot Public Works and to which reterence is made tor 37 a more particular description; and 38 39 BE IT FURTHER ORDAINED, that the temporary encroachments are expressly 40 subject to those terms, conditions and criteria contained in the Agreement between the 41 City ot Virginia Beach and SAMUEL W. ZIMMER (the "Agreement"), which is attached 42 hereto and incorporated by reterence; and 43 44 BE IT FURTHER ORDAINED, that the City Manager or his authorized designee 45 is hereby authorized to execute the Agreement; and 46 II 47 48 49 50 51 52 BE IT FURTHER ORDAINED, that this Ordinance shall not be in effect until such time as SAMUEL W. ZIMMER and the City Manager or his authorized designee execute the Agreement. Adopted by the Council of the City of Virginia Beach, Virginia, on the 13th day of October ,2009. CA-11007 X:IOIDlREAL ESTATEIEncroachmentslPW OrdinanceslCA11007 Zimmer Ordiance.doc V:lapplicationslcityiawprodlcycom32lWpdocslD012lP005100015623.DOC R-1 PREPARED: 6/23/09 APPROVED AS TO CONTENTS APPROVED AS TO LEGAL SUFFICIENCY AND FORM '~ rJ (QJ /> ,,' i!' '- ..... ~_,~ PUBLIC WORKS, REAL ESTATE rf\Jp ~}m1 Nell L. Ford, Special Council for the City Attorney II PREPARED BY VIRGINIA BEACH CITY ATTORNEY'S OFFICE (BOX 31) EXEMPTED FROM RECORDATION TAXES UNDER SECTION 58.1-811 (C) (4) THIS AGREEMENT, made this \'iS~ day of _~\JS 1-- ,2009, by and between the CITY OF VIRGINIA BEACH, VI RGINIA, a municipal corporation of the Commonwealth of Virginia, Grantor, "City", and SAMUEL W. ZIMMER, HIS HEIRS, ASSIGNS AND SUCCESSORS IN TITLE, "Grantee", even though more than one. WIT N E SSE T H: That, WHEREAS, the Grantee is the owner of that certain condominium unit known, designated, and described as "Unit B" in 53rd and Ocean Front Condominium, together with an undivided interest in the common elements appertaining to such unit, with such unit being shown on that certain plat entitled: "CONDOMINIUM PLAT 53RD AND OCEAN FRONT CONDOMINIUM BEING LOT 13, BLOCK 3 UBERMEER M.B. 7 P. 150 LYNNHAVEN BOROUGH VIRGINIA BEACH, VA SCALE l' = 10' 18 MARCH 1987 REV. 11 MAY 1987" and said plat is recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia in Map Book 194, at page 54, and being further designated, known, and described as 5303 Ocean Front Avenue, Virginia Beach, Virginia 23451; WHEREAS, it is proposed by the Grantee to construct and maintain a 6" cobblestone wall with asphalt pavement expansion, to modify an existing cobblestone planter, and to maintain existing block pavers, collectively, the "Temporary Encroachment", in the City of Virginia Beach; GPIN: (CITY RIGHT OF WAY - NO GPIN REQUIRED OR ASSIGNED) 2418-89-6893-5303 II WHEREAS, in constructing and maintaining the Temporary Encroachment, it is necessary that the Grantee encroach into portions of the existing City rights of way known as 53 Y2 Street and Ocean Front Avenue, the "Encroachment Area"; and WHEREAS, the Grantee has requested that the City permit the Temporary Encroachment within the Encroachment Area. NOW, THEREFORE, for and in consideration of the premises and of the benefits accruing or to accrue to the Grantee a nd for the further consideration of One Dollar ($1.00), in hand paid to the City, receipt of which is hereby acknowledged, the City hereby grants to the Grantee permission to use the Encroachment Area for the purpose of constructing and maintaining the Temporary Encroachment. It is expressly understood and agreed that the Temporary Encroachment will be constructed and maintained in accordance with the laws of the Commonwealth of Virginia and the City of Virginia Beach, and in accordance with the City's specifications and approval and is more particularly described as follows, to wit: A Temporary Encroachment into the Encroachment Area as shown on that certain plat, consisting of three (3) sheets entitled: "ENCROACHMENT AGREEMENT EXHIBIT ZIMMER RESIDENCE GPIN 2418-89-6893-5303 CONDOMINIUM PLAT 53RD AND OCEAN FRONT CONDOMINIUM BEING LOT 13, BLOCK 3, UBERMEER (M.B. 7, P. 150) VIRGINIA BEACH, VIRGINIA" copies of which are attached hereto collectively as Exhibit "A" and to which reference is made for a more particular description. Providing however, nothing herein shall prohibit the City from immediately removing, or ordering the Grantee to remove, all or any part of the Temporary Encroachment from the Encroachment Area in the event of an emergency or public necessity, and Grantee shall bear all costs and expenses of such removal. 2 II It is further expressly understood and agreed that the Temporary Encroachment herein authorized terminates upo n notice by the City to the Grantee, and that within thirty (30) days after the notice is given, the Temporary Encroachment must be removed from the Encroachment Area by the Grantee; and that the Grantee will bear all costs and expenses of such removal. It is further expressly understood and agreed that the Grantee shall indemnify, hold harmless, and defend the City, its agents and employees, from and against all claims, damages, losses and expenses, including reasonable attorney's fees, in case it shall be necessary to file or defend a n action arising out of the construction, location or existence of the Temporary Encroachment. It is further expressly understood and agreed that nothing herein contained shall be construed to enlarge the permission and authority to permit the maintenance or construction of any encroachment other than that specified herein and to the limited extent specified herein, nor to permit the maintenance and construction of any encroachment by anyone other than the Grantee. It is further expressly understood and agreed that the Grantee agrees to maintain the Temporary Encroachment so as not to become unsightly or a hazard. It is further expressly understood and agreed that the Grantee must submit and have approved a traffic control plan before commencing work in the Encroachment Area. It is further expressly understood and agreed that the Grantee agrees that no open cut of the public roadway will be allowed except under extreme circumstances. 3 II Requests for exceptions must be submitted to the Highway Operations Division, Department of Public Works, for final approval. It is further expressly understood a nd agreed that the Grantee must obtain a permit from the Department of Planning prior to commencing any construction within the Encroachment Area. It is further expressly understood and agreed that prior to issuance of a right of way/utility easement permit, the Grantee must post a bond or other security, in the amount of two times their engineer's cost estimate, to the Department of Planning to guard against damage to City property or facilities during construction. It is further expressly understood and agreed that the Grantee must obtain and keep in force all-risk property insurance and general liability or such insurance as is deemed necessary by the City, and all insurance policies must name the City as additional named insured or loss payee, as applicable. The Grantee also agrees to carry comprehensive general liability insurance in an amount not less than $500,000.00, combined single limits of such insurance policy or policies. The Grantee will provide endorsements providing at least thirty (30) days written notice to the City prior to the cancellation or termination of, or material change to, any of the insurance policies. The Grantee assumes all responsibilities and liabilities, vested or contingent, with relation to the construction, location, and/or existence of the Temporary Encroachment. It is further expressly understood and agreed that the Temporary Encroachment must conform to the minimum setbacks requirements, as established by the City. It is further expressly understood and agreed that the Grantee must submit for review and approval, a survey of the Encroachment Area, certified by a 4 II registered professional engineer or a licensed land surveyor, and/or "as built" plans of the Temporary Encroachment sealed by a registered professional engineer, if required by either the City Engineer's Office or the Engi neering Division of the Department of Public Utilities. It is further expressly understood and agreed that the City, upon revocation of such authority and permission so granted, may remove the Temporary Encroachment and charge the cost thereof to the Grantee, and collect the cost in any manner provided by law for the collection of local or state taxes; may require the Grantee to remove the Temporary Encroachment; and pending such removal, the City may charge the Grantee for the use of the Encroachment Area, the equivalent of what would be the real property tax upon the land so occupied if it were owned by the Grantee; and if such removal shall not be made within the time ordered hereinabove by this Agreement, the City may impose a penalty in the sum of One Hundred Dollars ($100.00) per day for each and every day that the Temporary Encroachment is allowed to continue thereafter, and may collect such com pensation and penalties in any manner provided by law for the collection of local or state taxes. IN WITNESS WHEREOF, SAMUEL W. ZIMMER, the said Grantee, has caused this Agreement to be executed by his signature. Further, that the City of Virginia Beach has caused this Agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk. (THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK) 5 II CITY OF VIRGINIA BEACH By (SEAL) City Manager/Authorized Designee of the City Manager STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of , 2009, by , CITY MANAGER/AUTHORIZED DESIGNEE OF THE CITY MANAGER OF THE CITY OF VIRGINIA BEACH, VIRGINIA, on its behalf. He/She is personally known to me. (SEAL) Notary Public Notary Registration Number: My Commission Expires: (SEAL) ATTEST: City Clerk/Authorized Designee of the City Clerk STATE OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The foregoing instrument was acknowledged before me this day of ,2009, by , CITY CLERK/AUTHORIZED DESIGNEE OF THE CITY CLERK OF THE CITY OF VIRGINIA BEACH, VIRGINIA, on its behalf. She is personally known to me. Notary Public (SEAL) Notary Registration Number: My Commission Expires: 6 II ~.&~ SAMUEL W, ZIMMER STATE OF VIRGINIA CITY/('OU~JTl' OF ~\n\A.. 'f.>~Kh , to-wit: The foregoing instrument was acknowledged before me this ~ day of ~\JCyYs\-- , 2009, by SAMUEL W. ZIMMER. ~~:..~ (SEAL) Notary ublic Notary Registration Number: 2- '1 bq, \. \-- My Commission Expires: C \ 1.g \ 1.0 \ \ ~ APPROVED AS TO CONTENTS APPROVED AS TO LEGAL SUFFICIENCY AND FORM ~<tR~.~0~ rill · '~}l/UL Nell L. Ford, Special Counsel for the City Attorney P Lo ReA) E~tCil DEPARTMENT X'IProJocts'Encror.uoan Imme,. Samuel & Pamela. GESlAg"",men! Encroachmenldoe 7 II LOT-7 54 TH STREET REMOVE EX 12" BLOCK PAVER WALL &- PORTION OF EX BRICK WALK .. LOT -6 Ii) ;'.-...."., '~,;,", ',,, ". FIELD = 53 RD V2 S TREEr PLAT = 15' WAY CROSS SET E to N -:n 0 .. ,.' A. .. l....: Q~ ~~ ~~ i::!.-a ~~ ~~\J ~G "?~ / iii:"! \ ""',..- ~ ~,. ,. ,.,.v< #5303 - UNIT B OCEAN FRONT AVENUE EX 3-STORY FRAME WITH VINYL. SIDING CONDOMINIUM \ ,< /cJ/j: LOT - 14 I'"~ .. , .' . } ""'; PIN FOUND ! ~()\j~\) ~~\. 0.20' REBUILD t;~i g;::lt) ~~. Cij "1-'Ii..1 g~l~ ~Oi ~~ ~ LOT -3 ~ [fi [ e:;cKI ~ ~ i:::' LOT-4 "" c:t '-..::. ~ ~ ~ .. ~ ~ ~ V) .. ~ "- ~ ~ =<: ~ S 81"04' W 50' ~'%.A" ~ 53RD~ 40' R/W ~STREET O~C) .J :'~) .. ll) N t<) ,'-" ~ .~, ,. C L r." /:.y.? t.~; " ,'B'J' APPROXIMATE LOCA nON OF CONDOMINIUM UNIT LINE LOT-5 date: 9/11/08 revised: 01/29/09 file: 208-0309_Ex .dwg tech: WJW proj, no. 208-0309 scale: \ drawing title: 1-. 20' DEMOLITION PLAN project: ENCROACHMENT AGREEMENT EXHIBIT EXHIBIT "A" ZIMMER RESIDENCE GPIN. 2418-69-6893-5303 CONDOMINIUM PLAT 53rd AND OCEAN FRONT CONDOMI~IUM BEING LOT 13, BLOCK 3 UBERMEER (M.B. 7, P. 150) VIRGINIA BEACH, VIRGINIA ~ .. ~ ~ ~ ~ LOT -13 UNIT A (NOT SHOWN) Lan scape Architects Land Surveyors Civil Engineers 242 Mustang Trail, Suite 8 Virginia Beach, VA 23452 FLOOD ZONE 'AO' DEPTH 1 FOOT I e:;KJ SHEET 1 OF 3 II 54 TH STREET 1?OPOSED 6" COBBLE STONE CURB W/ ASPHALT PAVEMENT EXPANSION LOT -7 TO FACE OF CURB LOT -6 FIELD = 53 RD V2 STREET PLAT = 15' WAY CROSS SET ~~ ~~ ~~ ~~ ~~ , \'({!;\!" '. >:' ',/:;5~~ .' l ~ L.f- hi'; ~; f3, h~1' f1 ~ ~ #5303 - UNIT BJ OCEAN FRONT AVENUE f;i EX 3-STORY FRAME ~ WITH VINYL. 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I ~{;] t: ~5 ::::: i:,i ,:'~ :::>. , ~ I--.-. ~ ~ <w: ~ S Br04' W 50' ""~-<' ~ 53.BJ2 rv 40' R/W rv S TREET ~ C) .: {~ "::.~' ~ APPROXIMATE LOCATION OF CONDOMINIUM UNIT LINE LOT -13 UNIT A (NOT SHOWN) FLOOD ZONE 'AO' DEPTH 1 FOOT ja;CKI dote: 9/11/08 revised: 01/29/09 file: 208-0309_Ex.dwg tech: WJW I a:;cKI LOT -4 LOT-5 praj. no. 208-0309 project: ENCROACHMENT AGREEMENT EXHIBIT EXHIBIT "A" ZIMMER RESIDENCE GPIN. 2418-89-6893-5303 CONDOMINIUM PLAT 53rd AND OCEAN FRONT CONDOMINIUM BEING LOT 13, BLOCK 3 UBERMEER (M.B. 7. P. 150) VIRGINIA BEACH, VIRGINIA Landscape Architects 757.431.1041 Land Surveyors wplsite.com Civil Engineers 242 Mustang Trail. Suite 8 Virginia Beach, VA 23452 scale: I drawing title: 1-.20' IMPROVEMENT PLAN SHEET 2 OF 3 II FiELD = 53 RJ) 1/2 STREET 0.86'1 PLAT == IS' WAY L --rr---- ~.,./ ,'..' ~ ~ :s: ~ J r PAVEMENT SAWCUT FOR <:::l . ASPHALT PAVEMENT EXPANSION C\j ..... 2.00' 0.53' :- - L - ~ _f_ --l (ll _ i:::' ~ '- ~ ~ ~ I I SA WCUT PAVEMENT DET AIL SCALE: 1" = 10' 1.5" V ,D.O.T. ST'D SM-2A BITUMINOUS CONCRETE SURF ACE ~ TACK COAT 3" V.D.O.T. ST'D BM-2 BITUMINOUS CONCRETE SURF ACE V.D.O.T. ST'D TYPE 1 SIZE 21-A AGGREGATE SUB-BASE COMPACTED TO 95"1. MAX. DENSITY, 6" 6" COMPACTED SUB-GRADE NOTE, WHERE BOTTOM OF PAVEMENT SECTION DOES NOT REACH SUB- GRADE THE SELECT MATERIAL (CBR215) SHALL BE USED AS BACKFILL & COMPACTED TO 95% MAX. DENSITY ASPHAL T PAVEMENT SECTION SCALE: NTS ...-... ~ ft ~ ~ ~ (::) dote: 9/11/08 revised: 01/29/09 file: 208-0309_Ex.dwg tech: WJW project: ENCROACHMENT AGREEMENT EXHIBIT EXHIBI.T "A" ZIMMER RESIDENCE GPIN. 2418-89-6893-5303 CONDOMINIUM PLAT 53rd AND OCEAN FRONT CONDOMINIUM BEING LOT 13, BLOCK 3 UBERMEER {M.B. 7, P. 150> VIRGINIA BEACH, VIRGINIA ~;~\~O' \ ~~~i~~~~~ PLAN Landscape Architects 757.431.1 041 Land Surveyors wplsite.com Civil Engineers 242 Mustang Trail, Suite 8 Virginia Beach, VA 23452 proj. no. 208-0309 SHEET 3 OF 3 GEORGE THOMPSON BASKERVILLE ill /}~'-f < 'j,.n U c., ...-J ;i c:;J- () 0 C> Z)qL A-s /1'7 Jf!- . L /~)O f.-.j' , . I-\- eE5(1)~1 {JC Aj 0 (z./ l-J,- /) r) '< i(-<::-,LJ r::od.- A /3, (.) J ".- {o 11.-1 c.> AJ' -rrJ- ::; u ? C2'kCj,{... Y ~ '+..1<- ,., My tJf ?~. 4-tV0 --- i ~ I -d v:c~( iAi iEJ'<..E $'(<20 I AJ P 1LE:::$'12. /1...11' I tV' G w l-f4..i PI Eft"71::j,..}-;-S 0 ;:::::- G.1. 4c. ( (; U 5 '- L..--I l./ 11../ G WtC CI'W (f..,J A C-I V lu ZA:,7oN' 5f:'id1f tJG L( ....- I t.h;;:~~{e....t:::' /"'7 () u\ 1,,,/6 iN 4-No~rt....... {;> u1..JcL. (7 0 J , LJ rz Sv {O>;?(':II?-..l A:.-cc. e; r::::;L:c.} f'C i-S r r.J :>;Ur(::>~ rL( u r: T tJ.".f-T. 1..f-4v'I'J G S~Ai t) Tl f~1rt- L. UiLr;-;';;;' I IN G ~,~ c:..e......,\ L- < '/1 ~ - .::.",1 !/4~'UiL I ..or: 77-1- ";:' IC E 6). JES '(-- rCz:,/'-. A' U ~Z, 4,Jc~' (:.=,< ~ /'( id-r;:. 'Z (l'I/~~...s /)"T t';;"-?Q ;;:: .--' ,.,) '7 Ci c.f:=/\t<J FI2...-urJ ( Avk.v u ~ ~ e..... ~ V 1'-1 t;;, (? r2 C> err<. C- r I ^-.1 T I-~ "ltt.-t. (; Y " "J I Jk::.SI ')1.:2 .- 11+~ IIC i--f (5.f1-1 .' - c::: t 1;;>0 /U . 1- -'7 .....- t.../:.:::. I+L'-7 /\ ') 5 u,A--1 / ,d G Ie U,J')f:..,Ls"n~D IT 1M D(=.';1t i (- I <> (~,...- is t1.f ilct~ k C.~-t-J'5CZ Iv A ( ( i'~ N L:::~4'l_ C:-w &J T / T f Jk, Z i t,/ ,1, <.2 t:"" ':) f+-,l-E' (<. (::-(.=,.1.Il, ,) CA,)n .t<,jL.. ') L. ( . Fl::Llj,~C' (,ji{.D S~.. "nt<'?7G," r .rr; (.-':h, , " ""V<L.- . /0 ' (';' ' ~ "..,.. 'V ~ ,~, -I ~ /2 ,/./ i.v1" t.--J,L.. ,/ Jz{-d-Ir.,Lf-' J'. I .C' /!' / - I -.....,..c~ I iJ ] 10 54th Street Virginia Beach, Virginia 23451 October 7, 2008 Mr. James C. Lawson Department of Real Estate Building 2, Room 392 Municipal Center Virginia Beach, V A. 23456 Re: Sam & Pam Zimmer Wall at 53 1/2 S1. & Oceanfront Ave. Dear Mr. Lawson: I understand that the Zimmers have applied to the City for a Variance for a six inch wall on the alley (or 53 Y2 Street) side of their home at 5303 Oceanfront Ave. Please be advised that the Zimmers are fine neighbors who maintain their property quite nicely . We use the alley extensively in connection with our home at 110 54th Street and are quite familiar with locale of the proposed wall. We have no objection to the wall or the proposed Variance and hope you will give it favorable consideration. Let us know if you have any questions or we can help in any way. ;-. Sincerely, ~~:'r~~~f II Oct.2, 2008 Mr. James C. Lawson Dept. of Real Estate Building 2, Room 392 Municipal Center Va. Beach, VA 23456 Re: Zimmer request for variance at 5303 Oceanfront Ave. Dear Mr. Lawson, Pam and Sam Zimmer, who are neighbors of ours, have taken time to share their revised plans to reduce the current stone wall in the alleyway next to their home on 5303 Oceanfront Ave. We understand that the current structure will be reduced by approximately 1.5 ft. ( towards their outside shower) to the south and asphalted to that new line. We also understand that they will reduce the current wall to be 6 inches above the level of the alleyway, We are in full suppOli of their revised plan, since we think the new structure will definitely be an enhancement to the alleyway. The Zimmers are meticulous caretakers of their property and this change will not only improve the overall appearance of their home, but the alley itself. We would hope that you would act favorably on their request. Sincerely,. rl ~ ;1IlkftA{,fi(A./ dU~l~<- j), t./L~/rJ ~'I David G. Suzanne D. Wilson 109 53nl Street Va. Beach, Va. 23451 II qo;J J. B. CAMPBELL, Ltd. 1000 WEST FRANKLIN STREET RICHMOND, VA 23220 October 2, 2008 Mr. James C. Lawson Dept. of Real Estate Building 2, Room 392 Municipal Center Virginia Beach, V A 23456 Re: 5303 Oceanfront Drive, Mr. & Mrs. Sam Zimmer My wife and I support the request for the 2 foot variance on the unimproved portion of the alley at 53rd Y2 St. Our home is attached to the Zimmer's home by a breezeway and they have done nothing but improve their property since they moved in. The landscaping and general overall appearance has been maintained at a high level. The alley has been cleaned up and even made easier for vehicles to enter and exit the alley from Oceanfront Drive as a result of their work. We respectfully ask that you support such efforts that improve our neighborhood. Thank you for your consideration. Sincerely, et--.. .../~ <0( c~J Gc // // t7 c/\~ /~~/~~C~ i . . B. & Lois Campbell 107 53rd St. Virginia Beach Phone 804.355.7095 Fax 804.355.1906 email: jbclimited@aol.com II y~t James C. Lawson Department of Real Estate Building 2, Room 392 Municipal Center Va. Beach, VA. 23456 October 14, 2008 Dear Mr. Lawson, As the former owner of 5303 Oceanfront Ave., and the current next- door neighbor of the property, I would like to take a moment of your time to express my feelings on the controversy surrounding the wall that Sam and Pam Zimmer have had constructed on the alleyway. When I owned 5303 Oceanfront Ave. (1988-2000), the area in question was a wooden pier style walkway with a planter at the corner of the alley and Oceanfront Ave. The stonewall that the Zimmer's have constructed is in the exact location as the old walkway. The wall is far more appealing to the neighborhood and adds a great look to the alleyway. Please give them all the leeway you can to maintain the current beauty of the stonewall they have built. The Zimmer's have worked hard on this property, and it is a great example of what a property on Oceanfront Ave. should look like. The are very conscious of what good looks add to the value of our block. (/'-'Tna <~ -"~ '" ~ Robert G. Whitten ( Bobby) 106 54th street Virginia Beach VA 23451 757 491 4617 II -~---------- .., ~ - -~ ,g . ~:;; ~';:l:: :;m ~'tJ 'tJ C C ~ lQ 4U ~~ ..:'" lQ C _ 0 0. .. .u. '" c: ~ ~ ~ !oJ 0.0 ------ ------------- C III ~ o 'tJ c: lQ- ~~ ~'5 ... iot ~ '" ff'.o "'0 ....... 111- \ .--; ./' " +~ ~ ~ 'B o o - 'i 4- ....l ~ ~ U1 ~ 0- '(;U1 O~U1 :J\J.l~ CO~U1 \\ I! - 44- Item V-I. 7. ORDINANCES/RESOLUTIONS ITEM # 59283 Upon motion by Vice Mayor Jones. seconded by Councilman Dyer, City Council ADOPTED: Ordinance to ESTABLISH the FEMA Administrative Cost Grant, a subgroup of the Emergency FEMA Fund, TRANSFER $99,852 and $184.157 from the Federal Emergency Management Agency (FEMA) deployment grants re the Virginia Task Force 2 Urban Search and Rescue Team. Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R, "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A, Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 II 1 AN ORDINANCE TO TRANSFER FUNDS RELATED 2 TO THE VIRGINIA TASK FORCE 2 URBAN SEARCH 3 AND RESCUE TEAM 4 5 WHEREAS, the Federal Emergency Management Agency (FEMA) has 6 previously provided in excess of $284,008 for administrative costs incurred by the 7 Virginia Task Force 2 Urban Search and Rescue Team (VA-TF2) for various 8 deployments, as well as costs incurred by the Fire Department's Operating Budget 9 related to deployments, 10 11 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF 12 VIRGINIA BEACH, VIRGINIA THAT: 13 14 1. The "FEMA Administrative Cost Grant," a subgroup of the Emergency FEMA 15 Fund is hereby created; and 16 17 2. $99,852 is hereby transferred from the following FEMA deployment grants as 18 per Attachment 1, Hurricane Dennis, Hurricane Katrina, Hurricane Ophelia, 19 Hurricane Rita, Hurricane Katrina(2), Hurricane Wilma, Hurricanes Charlie, Frances, 20 Ivan and Jean, Louisiana SARS, Hurricane Ernesto, Hurricane Dolly, Hurricane 21 Gustav, Hurricane Ike, Hurricane Omar, Presidential Inauguration 2009, and Fargo 22 Floods - North Dakota to the FEMA Administrative Cost Grant; and 23 24 3. $184,157 is hereby transferred from the following FEMA deployment grants as 25 per Attachment 1, Puerto Rico, Hurricane Dennis, Hurricane Katrina, Hurricane 26 Ophelia, Hurricane Rita, Hurricane Katrina(2), Hurricanes Charlie, Frances, Ivan and 27 Jean, Hurricane Ernesto, Hurricane Dolly, Hurricane Gustav, Hurricane Ike, 28 Hurricane Omar, and Presidential Inauguration 2009 to the FY 2009-10 Operating 29 Budget of the Fire Department. Adopted by the Council of the City of Virginia Beach, Virginia on the 13th day of October ,2009. Approved as to Content: BQA;JQ. Management Services Approved as to Legal Sufficiency: D~h---- City orney's Office CA11293 R-3 September 30,2009 II Attachment 1 : Funds for Distribution from Previous FEMA Deployment Grants Fire Department (General Fund) Repayment of Previous Administrative Cost Deployment Costs Reimbursed to Event Year & Name Incurred V A- TF2 USAR* Total 1999 Puerto Rico $ 1,565.91 $ 1,565.91 2005 Hurricane Dennis 8,177.87 4,964.96 13,142.83 Hurricane Katrina 43,520.52 26,045.81 69,566.33 Hurricane Ophelia 12,039.35 2,140.08 14,179.43 Hurricane Rita 11,538.17 4,874.82 16,412.99 Hurricane Katrina(2) 3,793.43 5,580.60 9,374.03 Hurricane Wilma 6,255.71 6,255.71 Hurricanes Charlie, Frances, Ivan, and 6,419.36 25,689.79 32,109.15 Jean 2006 Louisiana SARS 1.00 772.24 773.24 Hurricane Ernesto 17,718.94 (741.77) 16,977.17 2008 Hurricane Dolly 1,056.07 148.50 1,204.57 Hurricane Gustav 34,739.22 7,309.05 42,048.27 Hurricane Ike 28,462.63 14,524.25 42,986.88 Hurricane Omar 12,679.93 1,591.67 14,271.60 2009 Presidential Inauguration 2009 2,444.58 506.59 2,951.17 Fargo Floods - North Dakota 189.65 189.65 Total $ 184,156.98 $ 99,851.95 $ 284,008.93 *VA-TF2 USAR is the Virginia Task Force 2, Urban Search and Rescue Team C:\Documents and Settings\dharmeye\Local Settings\Temporary Internet Files\Content.Outlook\4X90PVDC\FEMA Administrative Cost Summary 9/30/2009 for CouncillO-13-09.xlsx Page 1 of 1 [I - 45 - Item V-L8. ORDINANCES/RESOLUTIONS ITEM # 59284 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinance to APPROPRIATE $93,430 to the Police Department's FY2009-10 Operating Budget from the fund balance of the DEA Seized Property Special Revenue Fund re purchase of equipment. Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R, Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 II 1 AN ORDINANCE TO APPROPRIATE DEA SHARED 2 ASSET FUNDS TO THE FY 2009-10 OPERATING 3 BUDGET OF THE POLICE DEPARTMENT 4 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 5 VIRGINIA: 6 That $93,430 is hereby appropriated from fund balance of the DEA Seized 7 Property Special Revenue Fund to the FY 2009-10 Operating Budget of the Police 8 Department for the purchase of equipment. 9 Adopted by the Council of the City of Virginia Beach, Virginia on the 13th day of October ,2009. Requires an affirmative vote by a majority of all of the members of City Council. Approved as to Content: Approved as to Legal Sufficiency: J)(Y\~)~.~ Management Services n.};,L -- City P<. torney's Office CA11292 R-2 September 28,2009 II - 46- Item V-I. 9. ORDINANCES/RESOLUTIONS ITEM # 59285 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED: Ordinance to ACCEPT and APPROPRIATE from the Department of Criminal Justice Services (DCJS) $20,847 additional funding to the Commonwealth Attorney's Office FY 2009-10 Operating Budget re the Victim Witness Program Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 II 1 AN ORDINANCE TO ACCEPT AND APPROPRIATE 2 FUNDS TO THE FY 2009-10 OPERATING BUDGET 3 OF THE COMMONWEALTH'S A TIORNEY OFFICE 4 FOR THE VICTIM WITNESS PROGRAM 5 6 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 7 VIRGINIA: 8 9 That $20,847 is hereby accepted and appropriated from the Commonwealth of 10 Virginia's Department of Criminal Justice Services to the FY 2009-10 Operating Budget 11 of the Commonwealth Attorney to provide additional funding for the Victim Witness 12 Program. 13 14 Adopted by the Council of the City of Virginia Beach, Virginia on the 13th day 15 of October , 2009. Requires an affirmative vote by a majority of all of the members of City Council. Approved as to Content: Approved as to Legal Sufficiency: Management Services /)~.? ! . ~~- City Ato ney's Office -- -H0WQ~v CA11295 R-2 September 30,2009 I - 47- Item V-I.I0. ORDINANCES/RESOLUTIONS ITEM # 59286 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer. City Council ADOPTED: Ordinance to APPROPRIATE $9,940 from the fund balance of the Proffer Impact Fund to refund overpayment of open space proffer fees to The Victoria Park Residential Development. Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley. Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr.. John E. Uhrin, Ron A, Villanueva. Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 II 1 AN ORDINANCE TO APPROPRIATE FUNDS FROM 2 THE FUND BALANCE OF THE PROFFER IMPACT 3 FUND TO REFUND OVERPAYMENT OF PROFFER 4 FEES 5 6 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, 7 VIRGINIA: 8 9 That $9,940 is hereby appropriated from the fund balance of the Proffer Impact 10 Fund for redistribution to customers who overpaid Victoria Park residential development 11 open space proffer fees. 12 13 Adopted by the Council of the City of Virginia Beach, Virginia on the 13th day 14 of October ,2009. Requires an affirmative vote by a majority of all of the members of City Council. Approved as to Content: Approved as to Legal Sufficiency: (L\r, ~"\ p~ Management Services r;) r7~ / Y /~~?__ City AU ey's Office CA11291 R-2 September 23,2009 II - 48 - J. PLANNING ITEM # 59287 1. SANDLER A T BRENNEMAN FARM, L.L. C. AMENDMENT TO PD-H2 LAND USE PLAN 2. HEBRON CORNERSTONE CHURCH CONDITIONAL USE PERMIT INTERNATIONAL/CS COMMERCIAL PROPERTIES, LLC 3. A TLANTIC MARINE CONSTRUCTION, INC. CONDITIONAL USE PERMIT 4. BOB AND DEBRA BURTON CONDITIONAL USE PERMIT 5. HAMPTON ROADS YOUTH AND COMMUNITY ADVISORY COUNCIL/PINEY GROVE BAPTIST CHURCH CONDITIONAL USE PERMIT October 13, 2009 - 49- Item V-J. PLANNING ITEM # 59288 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council APPROVED in ONE MOT/ON Items 1, 2,3,4 and 5 of PLANNING BY CONSENT AGENDA. Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R, "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 II - 50 - Item V-J.l. PLANNING ITEM # 59289 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon application of SANDLER A T BRENNEMAN FARM, L.L. C. for an Amendment to P D- H2 Land Use Plan at Brenneman Farm (Nichols Park at Lexington) to convert 76 three (3)-story carriage-style homes to 76 two (2)-story townhomes at Nichols Ridge Road, Willow Croft Drive and Totteridge Lane. ORDINANCE UPON APPLICATION OF SANDLER AT BRENNEMAN FARM, L.L.C, FOR AN AMENDMENT TO PD-H2 LAND USE PLAN, BRENNEMAN FARM (NICHOLS PARK AT LEXINGTON), NORTH SIDE OF NICHOLS RIDGE ROAD BETWEEN WILLOW CROFT DRIVE AND TOTTERIDGE LANE. BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of SANDLER A T BRENNEMAN FARM, L.L.C, for an Amendment to PD-H2 Land Use Plan. Brenneman Farm (Nichols Park at Lexington), north side of Nichols Ridge Road between Willow Croft Drive and Totteridge Lane (GPIN#: 14767154810000) DISTRICT 2 - KEMPSVILLE The following condition shall be required: 1. An Agreement encompassing proffers shall be recorded with the Clerk of Circuit Court and is hereby made a part of the record. This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia. on the Thirteenth of October Two Thousand Nine Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A, Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 II CITY OF VIRGINIA BEACH INTER-OFFICE CORRESPONDENCE In Reply Refer To Our File No. DF-7555 TO: FROM: Mark D. Stile~ B. Kay Wilson DATE: September 25, 2009 DEPT: City Attorney DEPT: City Attorney RE: Conditional Zoning Application; Sandler At Brenneman Farm, L.L.C. The above-referenced conditional zoning application is scheduled to be heard by the City Council on October 13, 2009. I have reviewed the subject proffer agreement, dated June 29,2009 and have determined it to be legally sufficient and in proper legal form. A copy of the agreement is attached. Please feel free to call me if you have any questions or wish to discuss this matter further. BKW/ka Enclosure cc: Kathleen Hassen II AGREEMENT THIS AGREEMENT is made June 29, 2009, by and between SANDLER AT BRENNEMAN FARM. L.L.C., a Virginia limited liability company (hereinafter referred to as "Grantor"), and CITY OF VIRGINIA BEACH. a municipal corporation of the Commonwealth of Virginia (hereinafter referred to as "Grantee"). WITNESSETH: WHEREAS, the Grantor has initiated an amendment to the Zoning Map of the City of Virginia Beach, Virginia, by petition addressed to the Grantee, to modify a portion of the Brenneman Fann Land Use Plan previously adopted by the City Council of the City of Virginia Beach, Virginia (the "Land Use Plan"); and WHEREAS, Grantor's property contains a total of 13.69 acres, more or less, is located in the Kempsville Election District of the City of Virginia Beach, Virginia, and is more particularly described in the attached Exhibit A (the "Property"); and WHEREAS, the Property is a portion of the property shown and described as "PROPOSED PD-H2 CONDOMINIUM C 17.8 +/- AC" on the exhibit titled "Proposed Zoning Plan," dated July 18, 2003, as contained in the four part, multi-page document entitled Brenneman Fann Development Manual dated July 18,2003, which publication was exhibited to and adopted as part of the Land Use Plan by the City Council (the "Manual"); and WHEREAS, the Grantor desires to amend the Land Use Plan so that a portion of the Property may be developed for two-story, attached dwelling units, instead of carriage houses, as proposed in the Land Use Plan and the Manual; and WHEREAS, the Grantee's policy is to provide only for the orderly development of land for various purposes, including mixed use purposes, through zoning and other land development legislation; and GPIN: 1476-71-5481 Prepared By: Faggert It Frieden, P.C. 222 Central Park Avenue, Suite 1300 Virginia Beach, VA 23462 II WHEREAS, the Grantors acknowledge that the competing and sometimes incompatible uses conflict, and that in order to permit differing uses on and in the area of the subject Property and at the same time to recognize the effects of the change and the need for various types of uses, certain reasonable conditions governing the use of the Property, for the protection of the community that are not generally applicable to land similarly zoned, are needed to cope with the situation to which the Grantors' rezoning application gives rise; and WHEREAS, the Grantors have voluntarily proffered in writing in advance of and prior to the public hearing before the Grantee, as part of the proposed conditional amendment to the Zoning Map, in addition to the regulations provided for in the existing A-12 and PD-H2 zoning districts by the City's Zoning Ordinance (CZO), the following reasonable conditions related to the physical development, operation and use of the Property to be adopted as a part of said amendment to the new Zoning Map relative to the Property, all of which have a reasonable relation to the rezoning and the need for which is generated by the rezoning; and WHEREAS, said conditions having been proffered by the Grantors and allowed and accepted by the Grantee as part of the amendment to the Zoning Ordinance, such conditions shall continue in full force and effect until a s':lbsequent amendment changes the zoning on the Property covered by such conditions; provided, however, that such conditions shall continue despite a subsequent amendment if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance, unless, notwithstanding the foregoing, these conditions are amended or varied by written instrument recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and executed by the record owner of the subject Property at the time of recordation of such instrument; provided, further, that said instrument is consented to by the Grantee in writing as evidenced by a certified copy of ordinance or resolution adopted by the governing body of the Grantee, after a public hearing before the Grantee advertised pursuant to the provisions of the Code of Virginia, Section 15.2- 2204, which said ordinance or resolution shall be recorded along with said instrument as conclusive evidence of such consent; and 2 II WHEREAS, certain covenants and restrictions governing the Property were adopted by the City Council of the City of Virginia Beach on July 24, 2003, as part of the Land Use Plan, which covenants and restrictions have been recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia (the "Clerk's Office") as Instrument Number 200310290176399, and amended by that certain Agreement dated January 1, 2007, recorded in the Clerk's Office as Instrument Number 20070501000590430 (as amended, the "Existing Proffers"); and WHEREAS, Grantor desires to modify certain of the Existing Proffers related to that portion of the Property to be developed as two-story, atta~hed dwelling units, without affecting or changing the Existing Proffers with respect to the remainder of the Property; NOW THEREFORE, the Grantors, for themselves, their successors, assigns, grantees, and other successors in title or interest, voluntarily and without any requirement by or exaction from the Grantee or its governing body and without any element of compulsion of quid pro quo for zoning, rezoning, site plan, building pennit or subdivision approval, hereby make the following declaration of conditions and restrictions which shall restrict and govern the physical development, operation and use of the Property and hereby covenant and agree that these Proffers shall constitute covenants running with the said Property, which shall be binding upon the Property and upon all parties and persons claiming under or through the Grantors, their heirs, personal representatives, assigns, grantees and other successors in interest or title, namely: 1. The Land Use Plan shall be modified and revised, so that the portion of the Property shown and described as "Area Proposed for 2 Story Attached Units" on Sheets 1 and 2 of the conceptual site plan of Lexington (the "Lexington Townhouse Section"), which has been exhibited to the City Council and is on file with the Planning Department, may be developed for two-story attached dwelling units, instead of carriage homes, as originally shown and depicted in the Land Use Plan and the Manual. 3 II 2. The total number of two-story attached dwelling units constructed within the Lexington Townhouse Section shall not exceed seventy six (76) units. 3. All dwelling units constructed within the Lexington Townhouse Section shall be constructed using designs and building materials in substantial conformity with those depicted on the rendering shown on Sheet 3 of the conceptual site plan exhibited to the City Council and is on file with the Planning Department. 4. Except as provided in this Agreement or on the conceptual site plan, the Lexington Townhouse Section shall be developed in accordance with the criteria set forth in Section 603, 605 and 606 of the Virginia Beach Zoning Ordinance in effect on the date this application is approved. 5. The required building setbacks for the two-story dwelling units constructed within the Lexington Townhouse Section shall be as follows: a. b. Front yard setback, from face of curb/private street Side yard setback, adjacent to a private street from face of curb for end units only Minimum distance between end units of buildings Rear yard setback from exterior property line or private street Minimum distance between buildings rear to rear Lot coverage building footprint Maximum building height 20' c. d. e. f. g. 10' 12' 10' 20' 45% 40' 6. A minimum of two (2) off street parking spaces shall be provided for each unit. Garage parking shall be utilized to meet parking requirements. 7. The private street width shall be twenty-six feet (26') from face of curb to face of curb. The private alley width shall be twelve feet (12') from edge of asphalt to edge of asphalt. 8. The Property shall follow the design criteria set forth below: a. The maximum number of units attached per building shall be six (6). b. Units shall be constructed on raised slab with brick skirt on the front elevation. c. At a minimum, beaded vinyl siding will be provided on all units. 4 II d. The following shall be allowed to encroach into required setbacks a maximum distance of two feet (2 '): fireplaces; bay windows; steps; decks which do not exceed eighteen inches (18") in height, excluding railings; patios; and HV AC equipment. e. Fences on the two story townhomes fronting on Totteridge Lane and Willow Croft Drive shall not be permitted. Further conditions may be required by the Grantee during detailed Site Plan and/or subdivision review and administration of applicable City Codes by all cognizant City agencies and departments to meet all applicable City Code requirements. All references hereinabove to zoning districts and to regulations applicable thereto, refer to the City Zoning Ordinance of the City of Virginia Beach, Virginia, in force as of the date the conditional zoning amendment is approved by the Grantee. The Grantors covenant and agree that (1) the Zoning Administrator of the City of Virginia Beach, Virginia shall be vested with all necessary authority on behalf of the governing body of the City of Virginia Beach, Virginia to administer and enforce the foregoing conditions, including (i) the ordering in writing of the remedying of any noncompliance with such conditions, and (ii) the bringing of legal action or suit to ensure compliance with such conditions, including mandatory or prohibitory injunction, abatement, damages or other appropriate action, suit or proceedings; (2) the failure to meet all conditions shall constitute cause to deny the issuance of any of the required building or occupancy permits as may be appropriate; (3) -if aggrieved by any decision of the Zoning Administrator made pursuant to the provisions of the City Code, the CZO or this Agreement, the Grantors shall petition the governing body for the review thereof prior to instituting proceedings in court; and (4) the Zoning Map show by an appropriate symbol on the map the existence of conditions attaching to the zoning of the subject Property on the map and that the ordinance and the conditions may be made readily available and accessible for public inspection in the office of the Zoning Administrator and in the Planning Department and that they shall be recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia and indexed in the name of the Grantors and Grantee. 5 II [Remainder of Page Intentionally Left Blank] 6 II IN WITNESS WHEREOF, the foregoing Agreement is executed as of the date first written above. GRANTOR: SANDLER AT BRENNEMAN FARM, L.L.C., a Virginia limited liability company By: .;/ ...--z-- ame:NQ.~~",~ (\~~'^<..c~ Its: ~ 'Ii\G G, ~ 0( -J COMMONWEALTH OF VIRGINIA CITY OF VIRGINIA BEACH, to-wit: The forell.oin,$ inslrwll..enl '!'l\" acknowledged before m~ this C(~y of Se~\""'\'l'(, 2009 f\Aby ~~\~\\) . \ "'::)e.\,'\5>o., , In hls/her capa Ity as ~ ~v~t'_.f on behalf of Sandler at Brenneman Fann, L.L.C., a Virginia limited lia . 'ty company. My Commission Expires: 0 / - ~ \ - \ C) ~Ujl~~4 N Public 7 II EXHIBIT A ALL THAT certain parcel of land, situate, lying and being in the City of Virginia Beach, Virginia shown on Plat of Phase 12, Nichols Park at Lexington, a condominium, as recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia as Instrument Number 20090317000274790 and being identified as Additional Land and bounded on the North by Totteridge Lane, on the east by Phase 5, on the south by an alley and on the west by Nichols Ridge Road; And ALL THAT certain parcel ofland, situate, lying and being in the City of Virginia Beach, Virginia shown on Plat of Phase 12, Nichols Park at Lexington, a condominium, as recorded in the Clerk's Office of the Circuit Court of the City of Virginia Beach, Virginia as Instrument Number 20090317000274790 and being identified as Additional Land and bounded on the North by an alley, on the east by Phase 6, on the south by Willow Croft Drive and on the west by Nichols Ridge Road. 8 I - 51 - Item V-J.2. PLANNING ITEM # 59290 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon application HEBRON CORNERSTONE CHURCH INTERNA TIONAL/CS COMMERCIAL PROPERTIES, LLC, for a Conditional Use Permit re a church renovation at 5565 Virginia Beach Boulevard. ORDINANCE UPON APPLICATION HEBRON CORNERSTONE CHURCH INTERNATIONALlCS COMMERCIAL PROPERTIES, LLC, FOR A CONDITIONAL USE PERMIT RE A CHURCH RENOVATION AT 5565 VIRGINIA BEACH BOULEVARD R0100935374 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application HEBRON CORNERSTONE CHURCH INTERNATIONALlCS COMMERCIAL PROPERTIES, LLC, for a Conditional Use Permit re a church renovation at 5565 Virginia Beach Boulevard. (GPIN#: 14673820460000) DISTRICT 2 - KEMPSVILLE The following conditions shall be required: 1. Where deficient, streetscape landscaping along Virginia Beach Boulevard and interior parking lot landscaping within the existing parking lot and islands shall be installed as described in the Landscaping Guide, City of Virginia Beach, December 2002, Details of said landscaping shall be depicted on a site plan and submitted to the Development Services Center for review and approval and shall be installed prior to issuance of final occupancy. 2. All outdoor lighting shall be shielded to direct light and glare onto the premises; said lighting and glare shall be deflected, shaded and focused away from adjoining property. Any outdoor lighting fixtures shall not be erected any higher than 14 feet, 3. A Certificate of Occupancy shall be obtainedfrom the Building Official's Office prior to operation of a church on this site. This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the Thirteenth of October Two Thousand Nine October 13, 2009 II - 52 - Item V-J.2. PLANNING ITEM # 59290 (Continued) Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R, "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D, Sessoms, Jr., John E. Uhrin, Ron A, Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 [' - 53 - Item V-J.3. PLANNING ITEM # 59291 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon application ATLANTIC MARINE CONSTRUCTION, INC for a Conditional Use Permit re a bulk storage yard at 3465 Chandler Creek Road ORDINANCE UPON APPLICATION ATLANTIC MARINE CONSTRUCTION, INC FOR A CONDITIONAL USE PERMIT RE A BULK STORAGE YARD AT 3465 CHANDLER CREEK ROAD. R0100935375 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application ATLANTIC MARINE CONSTRUCTION, INC for a Conditional Use Permit re a bulk storage yard at 3465 Chandler Creek Road (GPIN: #14859344980000) DISTRICT 3 - ROSE HALL The following conditions shall be required: 1. Bulk storage of construction vehicles, materials and equipment related to the marine business shall be limited to the area defined on the submitted improvements and layout plan entitled "Lot #6 Rosemont Commerce Park", page 6 of 15, prepared by WPL Civil Engineers. Land Surveyors, Planners and Landscape Architects, dated April 27, 2005. Said plan has been exhibited to the City of Virginia Beach City Council and is onfile in the Planning Department. 2. The applicant shall installforty (40) evergreen shrubs along the perimeter of the fence. The shrubs shall be three feet (3') in height at time of planting, spaced five feet (5') on center, in a five-foot (5 ') planting bed 3. The applicant shall install two feet (2') of wooden lattice along the top of the existing six- foot (6') fence. The proposed lattice shall be attached inside the fence on the portion facing into the storage area. 4. The applicant shall paint the storage container an earth tone color (cream, sand, beige, tan) so that it blends with the fence. 5. The applicant shall work with the Police Department CPTED office (MPO Jeff Eaton) to insure that the lighting on the site is unobtrusive to the adjacent neighbors and meet the applicant's security issues. 6. The applicant shall contact the Fire Department for an inspection of any hazardous materials on site. The applicant shall provide evidence of the inspection to the Planning Staff. 7. The applicant shall accomplish Conditions 2 through 6 within sixty (60)-days of City Council approval. October 13, 2009 I - 54 - Item V-J.3. PLANNING ITEM # 59291 (Continued) 8, All dump trucks, trailers and oversized vehicles shall be parked within the bulk storage area when not in use. 9, The gates to the bulk storage area shall be closed at all times except when personnel are loading or off-loading equipment and materials. 10. Hours of operation in and around the bulk storage area are limited to 7: 00 AM to 6: 00 PM Monday through Friday, 11. There shall be no stacking of containers on the site, This Ordinance shall be effective in accordance with Section 107 (f) of the City's Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the Thirteenth of October Two Thousand Nine Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr" John E. Uhrin, Ron A, Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 II - 55 - Item V-lA. PLANNING ITEM # 59292 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon application of BOB and DEBRA BURTON for a Conditional Use Permit re a residential kennel at 1425 Drum Point Road. ORDINANCE UPON APPLICATION OF BOB AND DEBRA BURTON FOR A CONDITIONAL USE PERMIT RE A RESIDENT/AL KENNEL AT 1425 DRUM POINT ROAD. R0100935376 BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon application of BOB and DEBRA BURTON for a Conditional Use Permit re a residential kennel at 1425 Drum Point Road. (GPIN #: 24109433650000; 24109404830000 DISTRICT 7 - PRINCESS ANNE The following conditions shall be required: 1. The applicant shall provide the Zoning Administrator evidence that the dogs are properly immunized and licensed with the City of Virginia Beach within thirty (3)0 days of City Council approval. 2, No more than fifteen (15) adult dogs [over six (6) months of age] shall be kept on the property at any time. This Ordinance shall be effective in accordance with Section 107 (f) of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the Thirteenth of October Two Thousand Nine Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 - 56 - Item V-J.5 PLANNING ITEM # 59293 Upon motion by Vice Mayor Jones, seconded by Councilman Dyer, City Council ADOPTED an Ordinance upon Application of HAMPTON ROADS YOUTH and COMMUNITY ADVISORY COUNCIL/PINEY GROVE BAPTIST CHURCH for Modification of Conditions (approved by City Council on April 11, 1988) to add portable classrooms at 2804 Holland Road: ORDINANCE UPON APPLICATION OF HAMPTON ROADS YOUTH AND COMMUNITY ADVISORY COUNCIL/PINEY GROVE BAPTIST CHURCH FOR MODIFICATION OF CONDITIONS [APPROVED BY CITY COUNCIL ON APRIL 11, 1988) TO ADD PORTABLE CLASSROOMS AT 2804 HOLLAND ROAD BE IT HEREBY ORDAINED BY THE COUNCIL OF THE CITY OF VIRGINIA BEACH, VIRGINIA Ordinance upon Application of HAMPTON ROADS YOUTH and COMMUNITY ADVISORY COUNCIL/PINEY GROVE BAPTIST CHURCH for Modification of Conditions (approved by City Council on April 11, 1988) to add portable classrooms at 2804 Holland Road. (GP IN # 1494590830) DISTRICT 7 - PRINCESS ANNE The following conditions shall be required: 1. All conditions attached to the Conditional Use Permit granted by the City Council on April 11, 1988, remain in effect. 2. The following conditions shall be added to the Conditional Use Permit granted by City Council on April 11, 1988: a. The portable structure shall be located on the site in substantial accordance with the marked-up site plan entitled "Physical Survey of Parcel of Land at 2408 Holland Road, Subdivision of Property for Emanuel Gould Estate and Piney Grove Baptist Church" prepared by Dennis J Gerwitz, PC, and dated December 4, 2007, A copy of this site plan has been exhibited to the City Council and is on file in the Planning Department. b. The portable structure shall complement the exterior colors of the existing church and shall be substantially in conformance with the submitted photographs of the portable structure. Copies of the photographs have been exhibited to the City Council and are onfile in the Planning Department. c. The portable structure shall have skirting around the entire base of each building to screen the under-carriage of the unit, October 13, 2009 I - 57 - Item V-J. 5 PLANNING ITEM # 59293 (Continued) d. The perimeter of the portable building shall be screened with evergreen shrubs, a minimum of twenty-four inches (24 ") in height, at the time of planting. e. The applicant shall obtain all necessary permits and inspections from the Department of Planning, Permits and Inspections Division. A Certificate of Occupancy shall be obtained before occupancy of the structure. f The portable structure shall not be occupied from 4: 30 PM to 7: 30 AM g. The portable structure is approved for a period of five (5)years from the date of this Conditional Use Permit approval. This Ordinance shall be effective in accordance with Section 107 (j) of the Zoning Ordinance. Adopted by the City Council of the City of Virginia Beach, Virginia, on the Thirteenth of October Two Thousand Nine Voting: 11-0 (By Consent) Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James 1. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 I - 58 - Item V.K. 1. APPOINTMENTS ITEM # 59294 Upon NOMINATION by Vice Mayor Jones, City Council APPOINTED: George A. Alcaraz Cheryl Avery-Hargrove 5 year terms January 1,2010 - December 31,2014 BOARD OF ZONING APPEALS Voting: 11~0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A, Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 I - 59 - Item V.K.2. APPOINTMENTS ITEM # 59295 Upon NOMINATION by Vice Mayor Jones, City Council APPOINTED: F. Dudley Fulton 3 year term January 1, 2010 to December 31,2012 CHESAPEAKE BA Y PRESERVATION AREA BOARD Voting: 11-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr., John E. Uhrin, Ron A, Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 - 60- Item V.K.3. APPOINTMENTS ITEM # 59296 Upon NOMINA TION by Vice Mayor Jones, City Council APPOINTED: Joyce Williams Unexpired term thru March 31, 2010 plus 3 years April 1, 20l0-March 31, 2013 HEALTH SERVICES BOARD Voting: 11-0 Council Members Voting Aye: Glenn R. Davis, William R. "Bill" DeSteph, Harry E. Diezel, Robert M Dyer, Barbara M Henley, Vice Mayor Louis R. Jones, Mayor William D. Sessoms, Jr" John E. Uhrin, Ron A. Villanueva, Rosemary Wilson and James L. Wood Council Members Voting Nay: None Council Members Absent: None October 13, 2009 - 61 - Item v.P. ADJOURNMENT ITEM # 592974 Mayor William D. Sessoms, Jr, DECLARED the City Council Meeting ADJOURNED at 6:07 P.M. .' '7) !2 ~ _~_J~____ __~L~~'!~/W/ Beverly 0. Hooks, CMC Chief Deputy City Clerk ~ uth Hodges Fraser, MMC City Clerk William D. Sessoms, Jr. Mayor City of Virginia Beach Virginia The Public Comment re Non-Agenda items adjourned at 6:08 P.M. October 13, 2009 II - 62- PUBLIC COMMENT Three (3) speakers were registered, but did not appear: Leslie Stukey, 295 Sugar Maple Drive, Phone: 301-6885 The following speakers called and advised they were delayed. The speakers wished to speak re taxi code enforcement: Lynne Johnston, Phone 718-8294 Darrell Johnston, Phone: 428-8294 Mayor Sessoms advised the City Clerk to schedule time for the speakers to meet with Mayor Sessoms and the City Manager re their concern. October 13, 2009 II - 61 - Item v.P. ADJOURNMENT ITEM # 59297 Mayor William D. Sessoms. Jr. DECLARED the City Council Meeting ADJOURNED at 6:07 P.M. ~~~ /J Yr,,/4/ ~-iI~':ks~~~-;;~--- Chief Deputy City Clerk w~k-v uth Hodges Fraser, MMC City Clerk William D, Sessoms, Jr. Mayor City of Virginia Beach Virginia The Public Comment re Non-Agenda items adjourned at 6:08 P.M. October 13, 2009